Oaths and Affirmations

Baroness Chalker of Wallasey took the oath.

Financial Services
 - Question

Lord Holmes of Richmond: To ask His Majesty’s Government what steps they are taking to ensure that all financial services are accessible and inclusive, including ATMs and point of sale terminals.

Baroness Penn: My Lords, the Government work closely with regulators, industry and consumer groups to promote financial inclusion. We are currently legislating to protect access to cash and many firms offer services to make everyday banking and payment interfaces, including ATMs and point-of-sale terminals, more accessible for consumers. Importantly, all service providers, including banks and building societies, are bound under the Equality Act 2010 to make reasonable adjustments where necessary in the way they deliver their services.

Lord Holmes of Richmond: My Lords, if we are to ensure financial inclusion, we need not just to have such financial services and products but to ensure that those services and products are accessible. Does my noble friend agree that the worrying rise in inaccessible point-of-sale terminals and card payment machines—for example, accessible keyboards being replaced with inaccessible flat screens—marks three things: a prima facie breach of equalities legislation, a complete failure of inclusion by design, and just bad business?

Baroness Penn: My noble friend is absolutely right that it is really important that innovation aid inclusion, rather than hinder it. I was really pleased to hear about the work the Royal National Institute of Blind People has done with manufacturers to create an accessible solution for card payments, and that these devices are starting to appear in some shops. That is excellent work that we would like to see replicated to ensure that the aims he rightly referred to are met.

Lord Hunt of Kings Heath: My Lords, the noble Baroness will be aware from our debate yesterday of the real concern about loss of banking facilities for people with disadvantages, and that there is a great risk that many currently free cash machines are going  to be converted, so that people will have to pay commission on the cash they take out. Will she look very carefully at last night’s debate and come back with amendments to safeguard financial inclusion?

Baroness Penn: I will absolutely be looking very carefully at all the details of yesterday’s debate. I do not think it necessary to amend the Bill to achieve what the noble Lord talks about. On face-to-face services and bank branch closures, there is already FCA regulation on banks seeking to close branches. That guidance has recently been strengthened and is very clear about the expectations for the provision of alternative services; also, the impact of branch closures on customers must be considered very carefully.

Baroness Tyler of Enfield: My Lords, recent research shows that blind and partially sighted people are twice as likely to be digitally excluded—and, by extension, financially excluded—as the general public. Does the Minister agree that the Financial Services and Markets Bill, which we discussed only last night, must give the FCA a “have regard to financial inclusion” statutory duty to ensure that financial inclusion is protected and advanced for blind and partially sighted people and other vulnerable groups?

Baroness Penn: My Lords, I recognise the strong interest in this area. As we debated last night, the previous Financial Services and Markets Act put an obligation on the FCA to look at it. It has brought forward its new consumer duty and believes that that fulfils the same function. I am sure that we will discuss this further in Committee.

Lord Kirkhope of Harrogate: My Lords, I declare a partial interest in that a member of my family is involved in designing, constructing and introducing ATMs and other retail technology. Does my noble friend think that enough is being done on the relationship and connection between organisations that represent those with disabilities, the Government and the manufacturers and designers of this equipment?

Baroness Penn: I would certainly be interested to hear what more could be done in that area. On ensuring that everyday banking is accessible to customers, LINK, for example, publishes on its cash locator information on ATMs with audio assistance and those that are wheelchair-accessible, so that consumers are aware of what locations are suitable for them. We are always interested to hear about what further work we can do to promote financial inclusion.

Baroness Bull: My Lords, the Minister mentioned the FCA consumer duty. As I understand it, that duty and the consumer vulnerability guidance deal primarily with existing customers and do not help with the issue of the poverty premium, which excludes vulnerable people and those with the least access to resources from financial products and services. Can she say how that new consumer duty will address the issue mentioned by the noble Baroness, Lady Tyler, because I do not believe they are the same thing?

Baroness Penn: The noble Baroness is right to mention the poverty premium. It can take different forms; it may be financial exclusion or being charged more for particular services. The Government progress their work on this area through the Financial Inclusion Policy Forum. For example, we are working with Fair4All Finance, which was set up using funding from dormant assets and seeks to provide more access to fair, affordable and appropriate financial products and services. It has an affordable credit scale-up challenge that seeks to address this area.

Baroness Hoey: Does the Minister share my concern at the increasing number of shops refusing to take cash? Obviously, they have the right to make that decision, but does she share my concern at the difficulty this poses for many people, particularly the elderly and vulnerable, who do not have bank accounts?

Baroness Penn: We absolutely recognise the importance of cash to the people the noble Baroness mentions. As she says, it is for shops and other service providers to determine how they accept payments, but we are legislating to protect access to cash through the Financial Services and Markets Bill. That should help those shops and service providers which wish to continue to accept cash to do so, because we are focusing on this from both a consumer and a wholesale perspective.

Lord Sikka: My Lords, if I understood the Minister correctly, she said that the consultation, or the rules, on bank branch closures are being strengthened. May I ask her to consider three facts? First, there is absolutely no consultation between banks and customers before a branch is closed. Secondly, banks do not publish details of their financial calculations to show whether a branch should be closed or not. Thirdly, people do not have the opportunity to object and vote against a bank’s decision. In light of that, what is any guidance worth?

Baroness Penn: My Lords, what I actually said is that the FCA guidance on bank branch closures has recently been strengthened. I do not recognise the picture the noble Lord paints. Firms are expected carefully to consider the impact of planned closure on their customers’ everyday banking and cash access needs and to consider alternative arrangements. The strengthened FCA guidance has specifically looked at enhancing protections for consumers who rely on those branch services. For instance, there are examples of banks placing people in those branches to ensure that they can help their customers to access banking through digital means such as mobile or online banking. There is also the rollout of Post Office banking hubs to provide more in-person services to customers.

Baroness McIntosh of Pickering: What consideration have the Government given to the ability of residents in rural areas to continue to draw cash from ATM machines, and to the security implications of rural businesses not being able to bank their cash at peak times?

Baroness Penn: The access-to-cash provisions in the Bill will require the FCA to consider access to cash at both a local and national level, so it will take geographic factors into account. That is also taken into account through LINK’s maintenance of the ATM network, which considers how far people might have to travel to access cash and what is reasonable.

Lord Tunnicliffe: My Lords, is the Minister claiming that progress on this matter is rapid enough? It seems to me that the general view in the House today is that it is not. If she is saying that the legislation is sufficient, surely, the implication is that the regulator is not doing its job well enough.

Baroness Penn: My Lords, there is always more to do. For example, I referred to the rollout of Post Office banking hubs. They may have been slower than expected to get off the ground, but just recently we have seen a large number of new hubs announced. That is an example of improvement in these areas. As I have referred to, we think we need more legislation, so we have measures in the Bill on access to cash to further strengthen that.

UK Aid to Afghanistan
 - Question

Lord Browne of Ladyton: To ask His Majesty’s Government what steps they intend to take in response to the report by the Independent Commission for Aid Impact UK aid to Afghanistan: Country portfolio review, published on 24 November 2022; and in particular, its assessment that “channelling funding in such high volumes through weak state institutions distorted the political process and contributed to entrenched corruption”.

Lord Goldsmith of Richmond Park: My Lords, the UK Government welcome the commission’s report and provided our formal response on 10 January. In Afghanistan, we are no longer providing support through the state. We recognise that large-scale financial support in conflict-affected contexts can come with considerable risk. We will work with ICAI and colleagues across departments to fully assess the impact of these recommendations on wider government policies. We will continue to press the Taliban Government to recognise the inalienable rights of women and girls.

Lord Browne of Ladyton: My Lords, looking forward, Ukraine, like Afghanistan, has weak institutions and a long history of entrenched corruption in both government and civil society. Since December, the UNHCR has been piloting the use of blockchain technology to get cash to internally displaced people there, and in 2020, a trial in the Colombian public sector procurement process showed that hybrid blockchain technology has the potential radically to reduce corruption  and increase transparency and accountability. What plans does the FCDO have to examine the benefits of blockchain, ensuring that UK aid gets through to where it is intended despite weak and corrupted state institutions, both in Ukraine—which will be a major recipient of aid in years to come—and elsewhere?

Lord Goldsmith of Richmond Park: My Lords, the department is and has been looking at other mechanisms, including blockchain, for delivering aid more effectively and minimising the risk of corruption, which is always there in the main trouble spots around the world—which include Afghanistan and, for different reasons, Ukraine. Notwithstanding its recommendations, the ICAI report was also very complimentary about the positive influence the UK has had in Afghanistan, in leveraging significant sums of finance from some of the multilateral development banks and ensuring that our own investments yield the kinds of results that taxpayers expect.

Lord Swire: My Lords, I believe that the most recent conference on Afghanistan was in Tashkent in 2022, but the last international conference on Afghanistan was in Geneva in 2020. Will my noble friend tell us whether there are any plans to convene another international conference on Afghanistan and, if not, whether the British Government might consider taking the lead on this? Would that not provide an opportunity to look again at corruption, the money that has gone missing and the money, particularly from the Gulf, which tends to go to the Taliban rather than the people of Afghanistan, whose need is so obvious?

Lord Goldsmith of Richmond Park: My Lords, I do not have details of upcoming conferences, but I will certainly put that question to my colleague, my noble friend Lord Ahmad, in whose portfolio that sits. It is of course the case that we work with friends and partners internationally on a continuous, routine basis to try to figure out the best approach to the problems in Afghanistan we are discussing, not least recent decisions by the Taliban to ban women taking part and working in NGOs and to prevent women and girls going to secondary school and university. All these issues are incredibly complicated and it is our view that no one donor country, or any country alone, can solve these problems. It is through these international partnerships that we have the most impact.

Lord Purvis of Tweed: My Lords, I declare an interest in that I chair the UK board of the charity Search for Common Ground, which is providing support for women and NGOs in Afghanistan in increasingly difficult circumstances. UK support to the Afghan Reconstruction Trust Fund, which was the biggest part of UK support under the previous Government, is now delivered through the World Bank. Part of that work is for women’s economic empowerment, which is now impossible to deliver. What mechanisms are in place for reassurance that UK taxpayers’ money is not being provided through multilateral bodies which are directly or indirectly facilitating the Taliban in persecuting and repressing women?

Lord Goldsmith of Richmond Park: My Lords, we regularly press the Taliban on a wide range of human rights issues, including the rights of women and girls. Our view is that educated, empowered women are critical to economic development, peace and stability right across the country, and that without them the country will not achieve stability or prosperity. We continue to work with the international community, including the G7, the G20 and various UN bodies, to press the Taliban to reverse their decision and to try to understand the implications of the recent ban, particularly in relation to women and girls working in NGOs, to try to ascertain the best possible mechanisms we can use to support those NGOs to continue their work.

Lord Collins of Highbury: My Lords, it is deeply concerning to read in ICAI’s report that £252 million of ODA money was spent supporting “torture and extrajudicial killings”. Given that there are claims that attempts to halt this were overruled at the highest levels of government, can the Minister confirm exactly who intervened and on what grounds, whether human rights abuses were raised and whether civil servants were overruled in this situation?

Lord Goldsmith of Richmond Park: My Lords, the second recommendation of the ICAI report relates to the point the noble Lord made. It was that UK aid should not be used to fund police or other security agencies to engage in paramilitary operations
“as this entails … risks of doing harm. Any support for civilian security agencies should focus on providing security and justice to the public.”
We accept that recommendation in full. It is worth again putting on the record that UK ODA funding in Afghanistan has never paid for paramilitary operations.

Lord Alton of Liverpool: My Lords, will the Minister tell the House whether it is the Government’s intention to continue to support restrictions on travel waivers from the United Nations for members of the Taliban while these reprehensible measures restricting women from receiving university education continue to be in place? Can he also say what he has done about the report sent to his department concerning the Hazara minority in Afghanistan and about reports that some of the members of that community are facing crimes against humanity and even genocide?

Lord Goldsmith of Richmond Park: My Lords, as I said in response to another question, we are routinely engaging with partners around the world to try to inhibit the worst excesses of the Taliban. We engage directly with the Taliban but that is not the same as recognising them—the distinction is important. As regards specific minorities within Afghanistan who are feeling the sharp end of Taliban oppression, I will need to ask my colleague, my noble friend Lord Ahmad, to report back to the noble Lord.

Bishop of Chelmsford: My Lords, as we discuss aid to Afghanistan, surely it is also right that we consider those who have worked with us so faithfully on the ground over the years to deliver educational  goals. It remains the case that the Afghan citizens resettlement scheme has not resettled any of those who worked for the British Council. Can the Minister please set out what is being done to ensure the promised resettlement of those individuals?

Lord Goldsmith of Richmond Park: My Lords, I believe that so far 6,300 eligible people have been resettled through the first phase of the Afghan citizens resettlement scheme, and that was targeted specifically at those who assisted our efforts in Afghanistan, as well as at vulnerable people, which includes members of minority groups. The scheme is expected to provide up to 20,000 people with a safe and legal route to resettle in the UK. Of course, this is a Home Office responsibility but the FCDO works very closely with that department to make sure that the programme remains accessible and effective.

Baroness Hodgson of Abinger: My Lords, now that women are being prevented from working for NGOs, how will we ensure that aid reaches women-headed households, which are the poorest of the poor and now have no means of support?

Lord Goldsmith of Richmond Park: My Lords, it is very difficult. The decision by the Taliban—which, by the way, has no basis in morality or religion—is a clear breach of international humanitarian principles as accepted by everyone and is yet another violation of the fundamental rights of Afghan women. The reality is that as a consequence of this ban it is very difficult for NGOs in that country to deliver the kinds of services and support that they provided, which is why our principal goal has to be to heap pressure on the Taliban to reverse this decision. Until that decision is reversed, I am afraid that there is no easy answer to the noble Baroness’s question.

Baroness Bennett of Manor Castle: My Lords, to follow on from the right reverend Prelate’s question, the German development agency, GIZ, reports that in the last few months of 2022, Germany extracted 24,000 people from Afghanistan—people who had worked for the German authorities, in human rights, in the media and on women’s issues. Can the Minister explain to me the large difference between the German figure of 24,000 and the figure he just cited for Britain?

Lord Goldsmith of Richmond Park: My Lords, I am not close enough to the process to give the noble Baroness chapter and verse but, as I said, our expectation is that when that first phase is completed, 20,000 people will have received safe and legal passage into the UK.

Social Care: Integrated Care Systems
 - Question

Baroness Wheeler: To ask His Majesty’s Government what plans they have to ensure that social care is sufficiently represented within Integrated Care Systems.

Lord Markham: ICSs need to include social care fully in planning and strategic decision-making. Local authorities are responsible for social care and have a clearly defined role within ICSs. The Health and Care Act 2022 includes local authorities in its minimum membership requirements for ICBs, giving local government a greater voice in NHS decision-making than ever before. In July 2022, we also published guidance on how ICPs and adult social care providers should work together.

Baroness Wheeler: I thank the Minister for his response but ICBs and ICSs have been fully operational only since last July—less than six months. The Minister is quite right that, when they were being set up, we argued strongly for the need for effective social care representation in both bodies to ensure that health and social care are integrated and fully embedded in both. However, this just is not happening. The ADASS spring survey found 73% of directors reporting that ICS management has had little impact on local investment in adult social care to date; some even said that ICSs were reducing investment. How does this help ICSs play a key role in their respective areas in, for example, tackling the staffing crisis in both services, prioritising adult social care and producing the urgently needed ICP integrated care strategies, which are due in June?

Lord Markham: First, I think we can all agree on the necessity of making sure that these are integrated and the vital role that social care plays in all this. I must say, my experience from the places I have visited is that they are well integrated, but I will take that point back and would be pleased to look at any particular examples of where we feel that is not the case because, as I think the whole House will agree, it is vital that they are completely integrated.

Baroness Chisholm of Owlpen: My Lords, I believe that six integrated care boards have been selected as national front-runners on innovations that will help move patients from hospital to their home. Can my noble friend the Minister confirm that these are going ahead, give examples and reassure us that they will be properly monitored, with data being collected? I have just realised that I called the Minister “my noble friend” but, due to my new role, all noble Lords are now my noble friends.

Lord Markham: Replying on behalf of all noble friends, let me say that I am particularly pleased to see this scheme go ahead. Just yesterday, Members of the House were talking about whether we should have full-time contracted dom care people because they know their patients best. That is exactly what these front-runner pilots are designed to do: to try out these new ways of working and heavily invest in areas, which you probably cannot justify on a national level until you know that it really works. Leeds, for instance, is developing a transfer of care hub, while the Northern Care Alliance is focusing on dementia. This is all about seeing what works and then, when we know what works, scaling it up very quickly.

Lord Laming: My Lords, I hope the Minister can assure the House that he has had an opportunity to read the Adult Social Care Committee’s report, which was published in December. The report makes it abundantly clear that the NHS will not achieve its objectives—some might even say its survival—unless social care is integrated at every level and includes the voice of unpaid carers. Can the Minister assure the House that these matters will be taken seriously?

Lord Markham: Absolutely. It strikes me—again, I mentioned this yesterday—that less than 10% of the 13,000 so-called blocked beds contain people who will need to be in social care full-time in future. Most of them need short-term support and, once they have it, will be able to go back to living in their home, which is the best place for them to be.

Lord Allan of Hallam: My Lords, as the Minister has recognised, social care provision is largely in the domain of local authorities. The level of local authority representation on integrated care boards is therefore likely to have an impact on how powerful the social care voice is in integrated care system decision-making. Does the Minister have any information to share with the House about local authority representation across the 42 integrated care boards, including whether it goes beyond the statutory minimum, so that we can understand whether it is sufficient and likely to lead to the step change that I think we all want to see?

Lord Markham: It is, as the noble Lord says, a statutory requirement that the local authorities are represented on the ICBs. In the last few months, I and other Ministers have met and had discussions with all the ICBs. Every ICB is asked to put up a few people. I have had the local authority representative there as one of only three or four people in the meeting—that is key to all of this. They have been critical participants. They are very involved, and it is vital that they remain so.

Lord Touhig: My Lords, the Government are to be congratulated on amending the Health and Care Act to ensure that responsibility for integrated care systems addresses the needs of children and young people under the age of 25. However, children with special educational needs or disabilities have lifelong problems. How will providers ensure that there will be integrated health and social care for disabled children and their families?

Lord Markham: This is the whole point and the way that we are moving; the real decision-makers running their local areas should be the ICBs. They know their areas and the needs of the people—including people with special needs and learning disabilities—more than anyone. It is absolutely their responsibility to understand the needs in their areas and to ensure that they are provided for under the commissions.

Lord Polak: My Lords, unpaid carers throughout the country are, more than often, working 24/7. The Care Act 2014 requires local authorities to deliver this  high-quality care, including support for unpaid carers. How confident are my noble friend the Minister and his department that local authorities will undertake carers’ assessments for unpaid carers?

Lord Markham: From my experience I understand that this is a very important part of their remit and role. As we are all aware, the unpaid carer role is vital and historically has probably not been recognised as much as it should have been.

Baroness Warwick of Undercliffe: My Lords, following on from the question asked by the noble Lord, Lord Laming, what plans has the Minister to encourage ICSs to embed co-production in the design and delivery of adult social care at the local level?

Lord Markham: Each ICB has a slightly different approach to ensuring that it is there and ensuring the kind of co-production with these front-runners that I talked about earlier. It is about trying to see whether there are new and better ways of doing it. Maybe at another time I can talk to the House in more detail about what those six different pilots are doing. It is about taking the comments that I have heard here over the last few weeks about what works and trying to scale them up.

Lord Kakkar: My Lords, I draw attention to my registered interests. Is the Minister content that the current approach to institutional and professional regulation will foster effective integrated care across institutional boundaries, secondary care, primary care and the broader community?

Lord Markham: Clearly, it is early days. These were set up last summer and we must ensure that they bed in properly and learn. I am confident that that is the right approach, but, as the noble Lord mentioned, we must make sure that regulators in this space ensure that that is the case. It is probably a question for a few months’ time, when we can be sure.

Baroness Finlay of Llandaff: My Lords, according to Hospice UK, of which I am a vice-president, up to half a million people last year had a palliative care phase before they died. In many of those cases, a failure of social care resulted in a breakdown of care in the community and hospital admission. Following on from the question asked by the noble Lord, Lord Touhig, when these patients are seriously ill or disabled children, they need access to respite care during their illness, as well as at the end, with rapidly responsive care. How are the Government monitoring whether the needs of these people are being met and that the timeframe to put in place the social care that they need does not just slip to the point of becoming a meaningless exercise?

Lord Markham: Those monitoring processes are in place, but to give sufficient detail, it is best that I write.

Care Homes: Staffing
 - Question

Baroness Pitkeathley: To ask His Majesty’s Government how they will ensure that care homes where they block-buy places to assist with hospital discharges are adequately staffed.

Lord Markham: On Monday, this Government announced an additional £200 million of funding for short-term NHS step-down care packages to help ease the pressure on local hospital beds. ICBs will work closely with local authorities to purchase places in care homes and other settings. Using their knowledge, they will commission appropriate beds where there is sufficient capacity, including workforce capacity, to meet patient needs.

Baroness Pitkeathley: I thank the Minister for that response, although it seems a bit more knee-jerk than it does a coherent strategy and it poses as many questions as it answers. For example, are the Government planning to pay care homes directly to pay recruited staff or to work through ICBs and local authorities only? What rates are to be paid? Will it be more than care workers currently earn, so as to compete with the retail sector? Given that there are 160,000 vacancies in the care workforce currently, where are those workers to come from, without pulling staff away from an already understaffed NHS?

Lord Markham: Before we went ahead with this, we spoke to many care providers to make sure that there was capacity within the system to do it. It was understood that the capacity is there. In fact, there is potential underused capacity of as much as 40,000. We are confident that the staffing is in place and that the care packages are there to really make a difference.

Lord Bellingham: My Lords, is the Minister aware that a lot of homes across Norfolk are complaining that they cannot sponsor more overseas members of staff? At a time when there are not enough locally trained and motivated staff, surely there should be more flexibility for those quality homes that want to sponsor more overseas members of staff.

Lord Markham: Yes, this is absolutely something that we talk to our Home Office colleagues about all the time. I believe that 15,000 people have already come through on this route in the last nine months or so; we are seeing a rate of about 1,500 a month. It is very important and something on which we are focused.

Lord Watts: My Lords, rather than bringing in people from abroad, would it not be more effective to pay our own people proper wages with proper conditions, so that they want to work in this sector?

Lord Markham: We absolutely need both. For years, ever since the NHS was founded, we have had international workers. It is a very important part of it now. Of the funding going in—up to £2.8 billion next year and up to £4.7 billion the year after—70% will translate into wages, because this is a staff-based business. That is a huge injection of money into the sector, and it will go into staff, salaries and welfare.

Lord Allan of Hallam: My Lords, we know from surveys by the Association of Directors of Adult Social Services that there is already a shortfall in domiciliary care capacity, such that people are not getting the services they need at home. While additional, funded care home places are welcome, we need to ensure that this does not worsen the domiciliary care situation by drawing staff away from other vital roles. I raised this question on yesterday’s Statement, but I think it important enough to come back to. Will the Government monitor workforce changes to ensure that both residential and domiciliary care capacity benefit from any new funding?

Lord Markham: Since the question yesterday, I have had a chance to talk to colleagues further about domiciliary care and understand its vital role. I talked to one ICB today, which has its own arm’s-length body, set up by the local authority, which does exactly what was suggested by employing domiciliary care staff full-time. They know the patient best and are ready to take them back out of hospital and put them in place. This is central to what we are doing.

Baroness Browning: When people are transferred, either to home or residential care places, part of the delay is caused by the need, quite rightly, for a proper and appropriate assessment of their needs before a transfer is made. What work have the Government done to assess who is going to carry out those proper assessments, either at the hospital or the care home end, and what the likely delay at that stage will be? It is delaying a lot of people now and no doubt will continue to do so.

Lord Markham: That is absolutely right. In our weekly meetings as Ministers, we look at the reason for the delays in terms of the 13,000 beds. That assessment of delay is one of the key criteria that we monitor each week. The best ICBs that I have seen have teams on this—they are absolutely SWAT teams—who make sure that they do it, and measure the time in which they can do it; for example, they have got to have that assessment within 24 hours. When the patient goes in, they have an estimate of the day that they are leaving, which they will target and work towards. The best do that, and the task force is set up to make sure that it is rolled out to all the other places.

Baroness Andrews: My Lords, the question has been put to the Minister already, but I want to put it again. Has he read the report of the Adult Social Care Select Committee, published in December, which has a raft of challenges and very good ideas on social care? I look forward to discussing it with the Minister.  Specifically, does he agree that as long as we characterise adult social care workers as unskilled and pay them, quite often, below the minimum wage, we are never going to build the capacity that we need? That is a huge challenge. If he were to read the report, he would find that what we recommend is so evidently simple: we need a national workforce plan for adult social care, to raise standards, incentives, status and pay.

Lord Markham: I thank the noble Baroness. I think that the House will recall that I have mentioned on a number of occasions that this is a critical part of the workforce plan. What has become clear, even in the short time that I have been at this box, is that social care is a vital cog in the whole chain, so to speak, which goes right back to ambulance wait times and A&E, because if we do not get the flow going out of the system, we have got problems there. So I can assure the noble Baroness that it is key to my thinking, and to all our thinking.

Baroness Watkins of Tavistock: My Lords, I declare my interest as a future member of the NHSE board. I want to ask how we are going to monitor the advancement from care homes back into domiciliary care, in order to ensure that we do not just move the problem from the hospital to care homes so that, very quickly, there are no beds left in care homes to continue this transfer system. In particular, who is going to pay for the residents in those care homes, and for how long?

Lord Markham: The question is absolutely correct: as I said earlier, less than 10% of these 13,000 people need to be in care homes full-time. The danger is often that once you put them there, they remain. That is why the package is focused on stays of up to four weeks, and absolutely making sure that they are monitored through, because it is vital. It is a step-down situation to help people ease from the acute—where they need a bit of extra support—so that, most importantly, they can get back home as soon as possible.

Lord Young of Norwood Green: My Lords, does the Minister agree that some of the best examples of care are provided by charities and faith-based organisations which pay more than the minimum wage? Is that not an example to be encouraged if we really want to improve the recognition of carers in the care sector?

Lord Markham: Yes, absolutely. I find—and I talk as a businessman of 30-odd years—that by paying people well, you attract and retain the most motivated staff. It is the best way to run an organisation.

Baroness Tyler of Enfield: My Lords, is it not the case that there will be sufficient staff in the social care sector—both care homes and domiciliary care—only when we have a truly integrated approach to workforce planning across both health and social care? Yes, pay will be absolutely critical, but so will progression and career development opportunities, and opportunities for things like joint posts and rotational arrangements between the two sectors. What plans do the Government have to look seriously at this critical workforce issue?

Lord Markham: Absolutely; it is an integration issue. Noble Lords will have heard me say just yesterday that our plan is for a modular system of development, so that someone in social care has the modules to go on to become a nurse. It is integrated in that way so that it is seen as a career path for all those people. It is fundamental to all our thinking.

Stamp Duty Land Tax (Temporary Relief) Bill
 - First Reading

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Conduct Committee
 - Motion to Agree

Baroness Manningham-Buller: Moved by Baroness Manningham-Buller
That the Report from the Select Committee The conduct of the Earl of Shrewsbury (2nd Report, HL Paper 120) be agreed to.

Baroness Manningham-Buller: My Lords, I will also speak to the three other Motions in my name. The four Motions refer to two entirely separate investigations and I do not imply any direct connection between them, but the issues are similar and by speaking to all the Motions I hope to avoid repeating myself.
I also remind the House that the proceedings on these Motions are governed by Standing Order 68, which requires that the reports arising from investigations and Motions on sanctions be decided without debate. I shall therefore be brief.
The first report relates to the conduct of the noble Earl, Lord Shrewsbury, and the second to the noble Baroness, Lady Goudie. These investigations have been conducted independently by one each of our two commissioners for standards. Both noble Lords have been found to be in breach of the prohibition in paragraph 9 of the Code of Conduct on the provision of parliamentary advice and services in return for payment and reward.
It has been some years since any breach of paragraph 9 has come before the House, and one of the features of both today’s cases is the extent to which noble Lords appear to have misunderstood or completely overlooked this rule. I served on what was then the Sub-Committee on Lords’ Conduct in 2009 and chaired it from 2010, when the reputation of this House was gravely damaged by media allegations that noble Lords were willing to influence Ministers and the House in return for payment, so these rules matter. In fact, the House adopted the present code largely in response to the 2009 allegations. This House was motivated above all by a desire to clamp down on what the Leader’s  Group on the Code of Conduct, chaired by the noble and right reverend Lord, Lord Eames, described as the phenomenon of
“‘peers for hire’ or ‘peers on the cab rank’”.
That is the essence of this issue. The code clearly states that noble Lords must not accept payment in return for either assisting or advising outside organisations on how to influence Parliament, Ministers or officials.
The rationale for that rule is equally clear. Membership of this House is an honour and a duty, not a source of profit. Noble Lords have a wide range of skills and experience, and the code acknowledges that most Members’ primary employment is or has been outside Parliament and that such diverse experience is to be encouraged. Indeed, one of the strengths of this House is that it can draw on such a wide spectrum of experience. But making money from membership of your Lordships’ House per se risks bringing the whole institution into disrepute.
The Conduct Committee does not attribute any conscious dishonesty to either noble Lord, but their breaches of the code are inherently serious. That is why the sanctions imposed for such breaches have historically been severe, involving suspensions of up to six months. The two commissioners who looked at these cases in detail have proposed suspensions broadly in line with these precedents. The fact that they are slightly more stringent—a recommended suspension of nine months in the case of the noble Earl and six months in the case of the noble Baroness—reflects the key difference that in both these cases, unlike previous cases, the noble Lords actually entered into agreements, received substantial payments, and in return provided parliamentary advice and services.
I am well aware that, in following these precedents, the commissioners have recommended suspensions, which the Conduct Committee has agreed to and supported, that are much longer than those imposed in the House of Commons in response to comparable breaches. While superficially it is hard to defend this, there are good reasons. The first is that any suspension of a Member of the other place affects not just the individual Member but the interests of that Member’s constituents, who lose their representative in Westminster for the duration of any suspension. As a result, suspensions in the other place have historically been short. This convention was reinforced by the Recall of MPs Act 2015, under which any suspension of an MP of 10 days or more can trigger a recall petition and potentially a by-election. In effect, any suspension of more than 10 days could lead to expulsion.
The length of the suspension in the other place needs to be understood against a backdrop which does not apply to this House. As I have been reminded from all corners of the House since I made the mistake of assuming this job, we are very different from the Commons. That is why, when the Commons introduces changes to its code of conduct, we do not import them wholesale into ours. It may be quite inappropriate to do so, and I fully expect differences between our codes to continue.
Before concluding my remarks, I wish to correct one small error of fact in the commissioners’ report on the noble Earl, which describes him as a Government Whip. I am sure that the noble Baroness the Government  Chief Whip would wish me to be clear that although the noble Earl, Lord Shrewsbury, has served as a party whip, he has never held a government position.
It gives me no pleasure to move these Motions and, as I said on a previous occasion, I hope to appear as infrequently as possible at this Dispatch Box. I hope that my brief remarks, along with the reports themselves, which Members have had an opportunity to read, explain why I and the Conduct Committee dismissed the appeals of the two noble Lords and upheld the findings and recommendations of our independent commissioners for standards. I now invite the House to do the same. I beg to move.
Motion agreed.

Motion to Resolve

Baroness Manningham-Buller: Moved by Baroness Manningham-Buller
That, in accordance with Standing Order 11, the Earl of Shrewsbury be suspended from the service of the House for a period of nine months; and that, in accordance with section 1 of the House of Lords (Expulsion and Suspension) Act 2015, in the opinion of this House, the conduct giving rise to this resolution occurred after the coming into force of that Act.
Motion agreed.

Conduct Committee
 - Motion to Agree

Baroness Manningham-Buller: Moved by Baroness Manningham-Buller
That the Report from the Select Committee The conduct of Baroness Goudie (3rd Report, HL Paper 121) be agreed to.
Motion agreed.

Motion to Resolve

Baroness Manningham-Buller: Moved by Baroness Manningham-Buller
That, in accordance with Standing Order 11, Baroness Goudie be suspended from the service of the House for a period of six months; and that, in accordance with section 1 of the House of Lords (Expulsion and Suspension) Act 2015, in the opinion of this House, the conduct giving rise to this resolution occurred after the coming into force of that Act.
Motion agreed.

Dentists, Dental Care Professionals, Nurses, Nursing Associates and Midwives (International Registrations) Order 2022
 - Motions to Approve

Lord Markham: Moved by Lord Markham
That the draft Order and Regulations laid before the House on 11 October and 16 November 2022 be approved.
Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 9 January.
Motions agreed.

State Immunity Act 1978 (Remedial) Order 2022
 - Motion to Approve

Lord Goldsmith of Richmond Park: Moved by Lord Goldsmith of Richmond Park
That the draft Order laid before the House on 7 September 2022 be approved.
Relevant document: 7th Report from the Joint Committee on Human Rights. Considered in Grand Committee on 9 January.
Motion agreed.

Architects Act 1997 (Amendment) Regulations 2022
 - Motion to Approve

Baroness Bloomfield of Hinton Waldrist: Moved by Baroness Bloomfield of Hinton Waldrist
That the draft Regulations laid before the House on 14 November 2022 be approved.
Relevant document: 20th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 9 January.
Motion agreed.

Public Order Bill
 - Order of Consideration Motion

Lord Sharpe of Epsom: Moved by Lord Sharpe of Epsom
That the amendments for the Report stage be marshalled and considered in the following order: Clauses 1 to 18, the Schedule, Clauses 19 to 35, Title.
Motion agreed.

Channel 4
 - Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Monday 9 January.
“Channel 4 is a great British success story. It was set up by Margaret Thatcher and it has done exactly what she wanted it to do: positively disrupting British broadcasting and driving an expansion in the UK’s independent production sector, which is now surging at £3 billion. However, in the last decade, the media landscape has been transformed by technology and the entry of new, rapidly growing streaming platforms. Channel 4, along with all public sector broadcasters, faces unprecedented competition for viewers in terms of both programming and talent.
Channel 4 is uniquely constrained in its ability to respond to those challenges. There are limits on the broadcaster’s ability to raise capital and make its own content. Under current legislation, Channel 4 operates as a publisher broadcaster, meaning that all its shows are commissioned or acquired from third parties, such as independent producers or other broadcasters, who typically retain the rights relating to those programmes.
The challenges faced by Channel 4 are very real. That is why the previous Administration decided to proceed with the sale in order to free the broadcaster from the constraints that were holding it back under public ownership. Over the last few months, I have carried out my own examination of the business case for the sale of Channel 4. I have listened to stakeholders and taken a close look at the broadcaster’s long-term sustainability and the wider economic outlook, and I have decided that pursuing a sale is not the best option to ease the challenges facing Channel 4. However, doing nothing also carries a risk. Change is necessary if we want to ensure that the corporation can continue to grow, compete and keep supporting our thriving creative industries. Anyone who says otherwise is burying their head in the sand.
After discussions with Channel 4, I am therefore announcing an ambitious package of interventions to boost the broadcaster’s sustainability. Under this agreement, Channel 4 will continue to play its own part in supporting the UK’s creative economy, doubling both the number of jobs outside London and its annual investment in the 4Skills training programme for young people. Meanwhile, we will introduce a statutory duty on Channel 4 to consider its sustainability as part of its decision-making. We are working with Channel 4 to agree updated governance structures to support that long-term sustainability.
We will provide Channel 4 with new commercial flexibilities, including by looking to relax the publisher broadcaster restriction to enable it to make some of its own content. In doing so, we will work closely with the independent production sector to consider what steps are necessary to ensure that Channel 4 continues to drive investment in indies, particularly the newest, smallest and most innovative producers. That includes increasing the level of Channel 4’s independent production quota, which is currently set at 25% of programmes, and potentially introducing specific protections for smaller independent producers. Any changes will be introduced gradually and following consultation with the sector. Finally, we will make it easier and simpler for Channel 4 to draw down on its private £75 million credit facility.
Alongside the changes to Channel 4, the media Bill will introduce a wide range of measures to modernise decades-old broadcasting regulations, including prominence reforms. Further details will be announced in due course.”

Lord Stevenson of Balmacara: My Lords, we wholeheartedly welcome the Secretary of State’s decision not to privatise Channel 4. The British public service broadcasting ecosystem is unique and has been built up over many decades. At a time when the market in  which it operates has been changing radically and is continuing to change, we should be very careful indeed about making major, radical adjustments that would threaten our successful cultural economy.
I have three questions for the Minister. Can he explain what aspects of the evidence that led the former Secretary of State to the original decision have turned out to be so flaky on review as to engender such an extraordinary policy U-turn? The Statement refers to introducing “updated governance structures” for Channel 4. Given that there is to be no change to the ownership of Channel 4, can he say whether that refers to the role that government currently plays, the board, the executive structure or all of the above? Can he confirm that the proposals will require changes to primary legislation? Finally, does he agree that changing the publisher broadcaster status, enshrined as it is in statute, would be a major change not only for the channel but for the independent production sector and would materially affect the public broadcasting sector ecosystem? I look forward to his comments.

Lord Parkinson of Whitley Bay: I welcome the noble Lord back to his position on the Opposition Front Bench and wish noble Lords a happy new year. My right honourable friend set out in another place the rationale for her decision: as she said, she looked at the business case and the evidence for doing so. She was very clear, however, that, while not pursuing at this time the opportunity of a sale of Channel 4, doing nothing was not an option either. As the noble Lord rightly said, it operates in a rapidly changing media landscape and, as part of our in-depth analysis, we have established that its long-term sustainability must be addressed. Channel 4 itself has acknowledged that in its own strategy document The Next Episode. The package that my right honourable friend set out addresses that, including through some legislative change which we will be taking forward in the media Bill.
On the publisher broadcaster restriction, the Government will make changes via the Bill to give Channel 4 the freedom to make and own some of its own content—a freedom it does not currently have. That will open up a range of options for it to grow its income, which is important for its sustainability. As we have seen, Channel 4 has done a fantastic job over the last four decades in doing what it was set up to do by the Conservative Government in the 1980s: to stimulate independent production. The cost of that is going up because of a number of competitors, and I am sure we are all interested in ensuring that it has the resources it needs to do that.

Baroness Bonham-Carter of Yarnbury: My Lords, I too welcome the return of the noble Lord, Lord Stevenson. He is like the noble Lord, Lord Parkinson: he goes and he comes back, and it is excellent that we have both of them back on the Front Bench. Given that the Government’s approach has supposedly been driven by their concern for the sustainability of Channel 4, can the Minister tell us what plans the Government have to act urgently on bringing forward legislation on prominence, which Ofcom recommended two years ago,  which the Government have been promising for months and which will make a huge contribution not just to Channel 4’s sustainability but to other PSBs? Can he confirm that there will be a media Bill imminently?

Lord Parkinson of Whitley Bay: I look forward to more questions on other aspects of the media Bill’s work than perhaps we have had in recent months. Yes, it is our intention to bring forward the media Bill when parliamentary time allows, so that we can carry forward important reforms that will benefit the whole of our public service broadcasting system.

Baroness Stowell of Beeston: My Lords, I declare an interest as the chairman of your Lordships’ Communications and Digital Select Committee. I welcome the Government’s decision on the future of Channel 4, not least because it reflects so much of what the committee recommended in the report that we published just over a year ago on the future of Channel 4—although it is worth reminding your Lordships that, as a committee which represents all sides of this House, we did not object in principle to the sale of Channel 4.
I was also pleased that the Government recognised, none the less, that the status quo was not an option for the future of Channel 4. Bearing in mind what my noble friend has just said about the media Bill, which will be necessary to introduce the legislative changes and address some other needs of public service broadcasters to ensure their sustainability, perhaps I may push him further. If he will not give us a precise timetable for when the media Bill will come, can he tell us in which order the Bills that the DCMS has on the slate are going to come? The Online Safety Bill is about to come but we are also waiting for the digital competition Bill.

Lord Parkinson of Whitley Bay: My noble friend will know, as a former leader of your Lordships’ House, that that decision is above my pay grade, but it is our intention to bring the media Bill forward when parliamentary time allows. I am grateful to her and the other members of your Lordships’ committee for their thoughts, which have been part of the evidence that my right honourable friend and colleagues at the department have weighed up.

Viscount Colville of Culross: My Lords, I declare my interest as a series producer for an independent television production company. Like many other noble Lords, I welcome the Minister’s Statement. I heard him say that the Government have now given Channel 4 the freedom to produce its own content in order to stimulate the independent sector. At the moment, Channel 4 commissions over 55% of its content from small qualifying production companies and is a major customer for many of the larger producers. Can the Minister explain how he can ensure that setting up the in-house production base will not adversely affect the independent content producer ecosystem?

Lord Parkinson of Whitley Bay: We know how important our independent production sector is, not just to British television but to our creative industries  more widely. We are absolutely committed to ensuring that Channel 4 plays its part in supporting what is a £3 billion sector. We will increase the level of Channel 4’s independent production quota, and, in doing so, we are looking at the potential for introducing specific protections for smaller independent producers.

Lord Grocott: My Lords, while the Minister must not let all those congratulations go to his head, I too certainly welcome the Statement. In particular, the reference in the document to increased investment in skills is to be welcomed, but can the Minister give some reassurance that he is bearing in mind that the recruitment of people into this sector should not come so much, as it has done in the past, from a relatively narrow section of the community? It needs to be broadly based, so that people come into it who do not necessarily have a background in broadcasting and do not see that as a career opportunity. On the other question about jobs outside London—which, again, I certainly welcome—it is not clear, when it says “from 300 to 600”, whether that is referring to a net increase in employment in Channel 4 or simply to a movement of staff from London to the other parts of the country.

Lord Parkinson of Whitley Bay: The noble Lord is absolutely right about ensuring that all of our public service broadcasters faithfully represent the country that they serve. We want Channel 4 to increase the opportunities that it offers young people, from all parts of the country and from all sorts of backgrounds, to get a foot in the door of our creative industries. It will be doubling its investment in its 4Skills training programme from £5 million to £10 million in 2025, and that includes new job opportunities and doubling its number of roles outside of London to 600 in 2025.

Lord Clement-Jones: My Lords, like the noble Viscount, Lord Colville, I am very concerned about the future for independent production companies in light of the Government’s plans, but, like others, I welcome the fact that there are no proposals to sell Channel 4. Can the Minister say how much taxpayers’ money has been wasted on those fruitless plans?

Lord Parkinson of Whitley Bay: My Lords, in answer to a Parliamentary Question, the Government set out that, in the last financial year, we spent £600,000 on plans for privatisation.

Lord Birt: My Lords, I unequivocally welcome this decision and recognise that it took some political courage to make it. In effect, the Government are again supporting public service broadcasting. I express a hope that the same attitudes and considerations that brought this sharp reversal will apply when they consider the future of the BBC over the next few years.

Lord Parkinson of Whitley Bay: Without wanting to interrupt the harmony that has broken out at the start of the new year, the Government have always had the best interests of the public service broadcasters, including Channel 4, at heart when looking at that issue. As we have noted, the media landscape is  rapidly changing. Unlike other public service broadcasters, Channel 4 has limited ability to diversify its revenue or to raise money through borrowing or equity capital. That is why we have looked at a range of options and why we have been very clear that doing nothing is not an option.

Baroness McIntosh of Pickering: My Lords, will my noble friend the Minister join me in giving a big shout out to Channel 4 for the number of European and global productions that it makes available free to view? While we were members of the European Union, we used to qualify for the MEDIA programme co-production scheme. Is that still the case?

Lord Parkinson of Whitley Bay: I will have to check that and write to my noble friend. I certainly echo her congratulations to Channel 4 on bringing a range of global content to viewers in this country and for sharing excellent British content with viewers around the world.

Industrial Action
 - Statement

The following Statement was made in the House of Commons on Tuesday 10 January.
“With permission, Mr Speaker, I would like to make a Statement on industrial action and minimum service levels.
Nurses, paramedics and transport workers are called key workers for a reason. They truly are the lifeblood of this country; every person sitting in this Chamber is grateful for the work they do, and I know that everyone will agree that we cannot do without them. The Government will always defend their ability to withdraw their labour.
However, we also recognise the pressures faced by those working in the public sector. Yesterday I invited union leaders in for talks across government, and I am pleased to say we have seen some progress. We want to resolve disputes where possible, while also delivering what is fair and reasonable to the taxpayer. At the moment, all households are struggling with the repercussions of high inflation caused by Covid and Putin’s barbaric invasion of Ukraine, and the Government are absolutely focused on tackling that.
Granting inflation-busting pay deals that step outside of the independent pay review settlement process is not the sensible way to proceed and will not provide a fair outcome. We will instead continue to consult to find meaningful ways forward for the unions, and work with employers to improve the process and discuss the evidence that we have now submitted. In the meantime, the Government also have a duty to protect the public’s access to essential public services. Although we absolutely believe in the right to strike, we are duty-bound to protect the lives and livelihoods of the British people.
The British people need to know that when they have a heart attack, a stroke or a serious injury, an ambulance will turn up, and that if they need hospital care, they have access to it. They need to know not  only that those services are available, but that they can get trains or buses—particularly people who are most likely to be the least well-off in society.
I thank those at the Royal College of Nursing, who, during their last strike, worked with health officials at a national level to ensure that safe levels of cover were in place when they took industrial action. They kept services such as emergency and acute care running. They may have disagreed, but they showed that they could do their protest and withdraw their labour in a reasonable and mature way. As ever, they put the public first, and we need all our public services to do the same.
A lack of timely co-operation from the ambulance unions meant that employers could not reach agreement nationally for minimum safety levels during recent strikes. Health officials were left guessing the likely minimum coverage, making contingency planning almost impossible and putting all our constituents’ lives at risk. The ambulance strikes planned for tomorrow still do not have minimum safety levels in place. That will result in patchy emergency care for British people. This cannot continue.
It is for moments such as this that we are introducing legislation focusing on blue-light emergency services and on delivering on our manifesto commitment to secure minimum service on the railways. I am introducing a Bill that will give the Government the power to ensure that vital public services will have to maintain a basic function, by delivering minimum safety levels to ensure that lives and livelihoods are not lost. We are looking at six key areas, each of which is critical to keeping the British people safe and society functioning: health, education, fire and rescue, transport, border security and nuclear decommissioning. We do not want to use this legislation, but we must ensure the safety of the British public. During the passage of the Bill, we intend to consult on what an adequate level of coverage looks like in fire, ambulance, and rail services. For the other sectors covered in the Bill, we hope to reach minimum service agreements so that we do not have to use the powers—sectors will be able to come to that position, just as the nurses have done in recent strikes.
That is a common-sense approach, and we are not the first to follow it. The legislation will bring us in line with other modern European countries such as France, Spain, Italy and Germany, all of which already have these types of rules in place. Even the International Labour Organization—the guardian of workers’ rights around the world to which the TUC itself subscribes—says that minimum service levels are a proportionate way of balancing the right to strike with the need to protect the wider public. The first job of any Government is to keep the public safe, and unlike other countries, we are not proposing to ban strikes, but we do need to know that unions will be held to account.
Opposition Members who object to minimum safety levels will need to explain to their constituents why, if they had a heart attack, stroke, or life-threatening illness on a strike day, there were no minimum safety standards in place—[Interruption.] I can see that they do not want to hear it, but they will also need to explain why their leader, the right honourable and   learned Member for Holborn and St Pancras, Keir Starmer, has already promised—without hearing any of these details—to stand in the way of this legislation and to repeal minimum safety levels, which are in the interests of their constituents, are in place in every other mature European democracy and neighbouring country, and would protect lives and livelihoods in this country. That is the difference between a Conservative Government who take difficult decisions to protect the welfare of our nation, and the Opposition, who too often appear to be in the pay of their union paymasters. I commend this Statement to the House.”

Lord Lennie: My Lords, I begin with a statement of the blindingly obvious—that this is an issue of the Government’s own making. Yesterday the Minister kindly wrote to me to update me on the Government’s proposals to legislate for minimum service levels, or “minimum safety levels”, as the Statement said a couple of times. I wonder what it is. Is it “service level” or “safety level”, and is there a difference between the two?
In his letter, the Minister said that:
“The Government also has a duty to the public to ensure their safety, protect their access to vital public services and to help them go about their daily lives.”
We can all agree on that, but the Government are failing in that duty. In November, close to 40,000 patients waited more than 12 hours in A&E for a decision to be admitted to a hospital department, an increase of 350% over the previous November. In the last week of 2022, more than one-quarter of ambulance patients in England queued in the back of ambulances to be admitted to A&E—that is almost 19,000 people. A week ago, the president of the Royal College of Emergency Medicine said that up to 500 people a week could be dying because of delays to emergency care, the worst he has ever seen. Yesterday an emergency medic described to the Independent newspaper how he had declared a man dead on the waiting room floor in front of his wife and members of the public after he collapsed, as the hospital had run out of beds and trolleys. These are not examples of the public’s safety being ensured, of access to vital public services being protected, or of people being helped to go about their daily lives; these are examples of the Government failing in their duty.
Strikes did not cause these situations, but the Government’s failure to prevent them are making these situations even worse. That is why this is not about public safety but about the Government playing politics to try to distract from the real issues—the economic situation that they have caused and the NHS staffing shortages. Excess deaths are at their highest levels since the pandemic peak, and the public is being put at risk every day due to the NHS crisis that the Government have presided over. The Government know that their plans will not work. What assessment have they made of the effectiveness of minimum service levels to reduce the number of strikes and disruption? The impact assessment for the Transport Strikes (Minimum Service Levels) Bill stated that imposing minimum service levels could “increase … frequency of strikes”. Is this no longer the case? Does the Minister  accept that firing highly skilled employees in essential public services would be counterproductive and would exacerbate the problems that already exist?
The Government have also been disingenuous in their arguments about bringing in these provisions. The letter that I received from the Minister also said, as has been repeated on a number of occasions by the Government, that
“this package of measures will see the UK align with many countries across the world such as France and Spain that already have minimum service levels in place, to prevent large swathes of their economies being ground to a halt by industrial action.”
While it is true that western European countries, including France, Spain and Italy, require some essential public services to keep a level of activity, in practice, when there are strikes, these levels are most often due to mutual agreements between employers and unions. In Italy, for instance, employers often defer to unions in deciding these levels. On the Paris transport network, levels are the result of voluntary agreements. The last two occasions when the French Government used their powers to force striking workers to return to work were 12 years apart. But most of all, those countries, with the laws that the Government are bringing in in this country to solve strikes, lose vastly more strike days than does Britain. Is that what the Government are really trying to achieve?
As well as referring to other countries, the Statement referred to the International Labour Organization, yet the ILO requires compensatory measures and an independent arbitrator, as well as saying that minimum service levels can happen only in services when
“the safety of individuals or their health is at stake”.
Yet the Bill that the Government have introduced does not contain those measures and allows regulations to be made in relation to transport, education services and the Border Force.
If the Government know that they cannot make these regulations without breaching ILO rules, what is this other than performative politics? What the Government should be doing is sitting down at the negotiating table and hashing out long-overdue deals that are needed to maintain our vital public services. Does the Minister accept that the Government’s failure to negotiate with workers is worsening, and will continue to worsen, the performance of public services, including adding to waiting times in the NHS? When will they return to the negotiating table to try to clear up the mess they have made?

Lord Fox: My Lords, I thank the Minister for taking questions on the Statement and congratulate the noble Lord, Lord Lennie, on his contribution. I will try to focus my questions and comments on how the Minister expects this to work.
The coming Bill is interesting because it introduces the concept of a minimum service level. Of course, in the Bill, the actual levels of service are not defined—true to form, this Government will come back with secondary legislation to do that. Can the Minister give your Lordships’ House at least an idea of what criteria will be used to come up with the minimum service levels? Will they be the same right across the country or will, for example, rural and urban areas have different minimum service levels? These are important issues.
There is, however, a wider issue around service levels. Taking yesterday as an example—when there were no strikes, as far as I am aware—can the Minister tell your Lordships’ House whether the tens of thousands of people waiting weeks to see their GP were getting a minimum service level? Were the people across Britain waiting sometimes tens of hours for ambulances getting a minimum service level? Were the people trying desperately to travel by train from Manchester to London experiencing a minimum service level? This is the baseline from which this legislation is working, and it is clearly not good enough. The public expect and deserve higher minimum standards than they are getting today, and on every day when there are no strikes.
Instead of addressing this issue, which I would define as the Government’s duty of care, the Bill passes the onus on to individual workers in these sectors. It is not the Ministers, the bosses or indeed the union leaders who will be sacked if the Government’s standards are not met; it is individual workers. I want briefly to illustrate this. If the Bill is enacted, the Secretary of State will impose a minimum service level. In the event of a strike, employers will be required to identify named employees who will be mandated to work via a work notice. At that point, these individuals are deprived of their right to strike on pain of probable dismissal. That does not square with the Secretary of State’s statement that this does not infringe the right to strike.
I know the Minister, and I am sure that, in his heart, he knows that a different approach is needed to deliver the service levels we need in this country. First, as was mentioned by the noble Lord, Lord Lennie, we need to plug the huge hole in our public sector workforce. We literally need hundreds of thousands of new people in order to deliver the basic service levels we require. A serious Government would be working with everyone in every part of these vital sectors. Can the minister tell your Lordships’ House one thing in this legislation that will help to build a bigger, better workforce in this country? Of course, a necessary first step is sorting out the pay disputes.
Turning to the NHS, the Government have absented themselves from negotiating the pay round, citing the inviolability of the pay review body. This position would have more credibility had not the Government suspended the body as recently as 2018, instead negotiating directly to deliver the 2018-21 pay agreement. What has changed since 2018 that means the Government will no longer directly negotiate with workers on this issue?
The original Bill, over the summer, targeted only rail. As we have heard from the noble Lord, Lord Lennie, the impact assessment identifies more than a dozen risks and unintended consequences—not least, I hasten to add, the proliferation of sub-strike action such as overtime bans, which would cripple the NHS and is already crippling our rail services. The current Bill steps beyond the Government’s manifesto commitment and adds five more sectors. Given the differences between the two Bills, when will the Government publish an updated impact assessment?
Finally, I am sure it is extremely frustrating running a public service in the United Kingdom, but can the Minister tell us how many bosses actually asked His Majesty’s Government for this legislation? Can he point to any appetite for this beyond the Back Benches  of his own party? As I said, we will take a practical approach to scrutinising this legislation when it comes to your Lordships’ House.

Lord Callanan: My Lords, I thank the noble Lords, Lord Lennie and Lord Fox, for their contributions. I start by placing on record the Government’s thanks to public sector workers, especially those working in the NHS. Their work is greatly valued and I know that all noble Lords here today are very grateful for the work they do.
Let me say in response to the noble Lords that while the pressure on the public sector is of course recognised—there are unprecedented strains, particularly on the health service at the moment—it is regrettable that multiple unions have taken the decision to strike. The public are understandably worried about access to emergency care and they are tired of the ongoing chaos on many parts of our public transport network. The Government want to resolve these disputes where that is possible and Ministers across government have been meeting union representatives this week to find meaningful ways forward that are fair and reasonable to the taxpayer. While these conversations continue, it is sensible and reasonable for the Government to take steps to reduce the disproportionate impact that strikes can have on the wider public and on our economy, and that is why we have taken the decision to introduce this legislation.
Let me be clear: we hope that in many cases we will not have to use the powers the Bill gives us. Where unions reach voluntary agreements—as is the case with the nursing unions at the moment—to provide adequate minimum levels of service that keep people safe and help the economy and society to function, we will not regulate those sectors. However, it is absolutely right that the Government have the power to act in key services where that does not happen.
The noble Lord, Lord Lennie, raised the issue of international compatibility, particularly with the ILO. I can reassure noble Lords that as part of the introduction of this legislation, the Secretary of State signed a statement of compatibility with the ECHR, and a memorandum to this effect has been published. I will place a copy of that memorandum, in addition to the delegated powers memorandum, in the Libraries of the House. Since the noble Lord quoted the ILO, let me quote the ILO back to him. The ILO itself states that minimum service levels can be a proportionate way of balancing the right to strike with the right to protect the wider public, and that is exactly what we are doing.
Let me address head on the issue raised by both noble Lords, Lord Lennie and Lord Fox, with their fairly alarmist statements about it somehow being the Government’s policy to sack workers as part of this legislation. I clarify for the record and for noble Lords that that is not the case. It is a ridiculous exaggeration. When it comes to the position of this Government on the number of key workers, we are in favour of increasing them, not sacking them.
Both noble Lords referred to other European countries. There is a certain irony in this, because normally, both noble Lords press me to adopt what other European  countries are already doing—they normally quote it, particularly the Liberal Democrats, as an example of what we should be doing in this country. It is the case, although noble Lords might not like it, that many European countries and other global democracies have minimum service levels. They are facing precisely the same challenges and protecting the wider public from disproportionate impacts of strikes. In fact, many of those countries ban strikes completely in blue light and border security areas. Of course, we are not proposing to do that. This legislation does not ban the right to strike. The Government will always defend workers’ ability to withdraw their labour, but in line with what the Liberal Democrats normally ask us to do, this legislation actually brings us into line with what many other modern European countries already do.
Both noble Lords asked me about implementation and the detail of how these would work in practice. We will consult on how they will be applied to rail, ambulances and the services. These consultations will outline the proposed approaches for MSLs in each service—they will differ across different services, of course—and I will endeavour to have published during the passage of this legislation each consultation expected to be published. I look forward to engaging with noble Lords on this issue in more detail during the passage of the Bill.
The noble Lord, Lord Lennie, suggested that the Government should focus on resolving the disputes with the unions and do away with this legislation. As the Prime Minister promised last week, we are building a better future for the country by halving inflation this year, growing the economy and getting our national debt down. If we met all the inflation-busting demands of the unions, we would be shooting the economy in the foot and making life harder for other workers up and down the country. The answer to his point is that we are doing both. Of course, we will continue to talk and negotiate with the unions, but it is right that we take action to make sure that the public are protected where necessary.

Lord Pannick: My Lords, the Minister will know that Clause 3 of this Bill is the most extraordinarily wide Henry VIII clause, which will allow Ministers, by regulations, to amend or repeal not just legislation already passed but any legislation to be enacted later in this Session. Is that not the clearest possible sign, together with the framework nature of the Bill, that the Government have not yet worked out how their policy will be implemented in practice?

Lord Callanan: That is not the case at all. We have outlined the services that minimum service levels will be applied to, but it is right to consult widely on how the appropriate regulations will work in practice. As I have said, if voluntary MSLs are in place—as they are in some sectors at the moment—and we do not need to regulate those sectors, that is a preferable way to proceed.

Baroness Donaghy: My Lords, I was chair of ACAS for seven years. Has ACAS been consulted about these proposals? If not, why not? I was asked by a friend who sits on a school board how, if a head  teacher decided to sack all the staff in their school, any minimum service or safety level would be fulfilled. Would the Government step in to provide staff?

Lord Callanan: As I said in response to earlier questions, we do not desire or wish to sack any public sector workers in any sectors. We are in the business of increasing the number of public sector workers, not sacking them.

Lord Balfe: My Lords, I declare my entry in the register of interests. The Explanatory Notes to the Bill say:
“This Bill and subsequent regulations are designed to enable employers to require enough workers to work so as to ensure minimum service levels”.
How will they make them work? I am the president of BALPA, the pilots’ union. We have an understanding with all the airlines that any pilot who feels unfit to fly the plane can declare themselves as such. What about a train driver? Will you say to them, “You’ve got to drive this train, however you feel” or will there be a back-up? Frankly, this legislation is just not thought through. What are the sanctions? You cannot direct people to do this without having some sanctions.
Much has been made of Europe. The European Trade Union Institute, the holding body for the international trade union movement, has fact sheets on 48 countries in Europe. Britain comes well down the list on flexibility of labour. Although a number of countries supposedly have agreements, they do not appear to be enforced. How much study has the Minister done?
My next brief point is that we are taking a chance, are we not? You can take a horse to water, but you cannot make it drink. I see here shades of 1972: the dockers in Pentonville prison and a Government completely out of control who then ask the country—as Ted Heath did—“Who runs Britain?” and they say, “Not you, mate.” For the first time in modern history, the Labour Party has committed itself to doing something, which is to repeal this if it becomes an Act. I actually believe the Labour Party, because the Bill is so ridiculous that it could not stand on the statute book anyway. Does the Minister wish to provide us with an autumn of fun and games—because that is when this will stretch on to—or would he like to advise his department to go back to the drawing board and see whether this is a sensible way of solving a problem which probably does not exist?

Lord Callanan: There were a huge number of questions in my noble friend’s statement. He asked me for examples of other European countries, which I am happy to provide to him. In Spain, France and Belgium, there are statutory minimum service levels in the ambulance and fire services. Many other European countries have statutory bans on border service workers striking at all. He raised the spectre of people going to prison, but that is not the case. There is no element of criminality involved in this. This is not the criminal law; it is the civil law. He asked me how it would work in practice. When a minimum service level is set, an employer will issue enough work notices to sufficient workers to ensure that the key sectors are covered in order to provide those minimum service levels.

Baroness Blower: My Lords, the Minister and the Government are being a little disingenuous when they refer to what happens in Europe. I am delighted to follow the noble Lord, Lord Balfe. The fact is that the countries the Minister listed, generally speaking, engage in sectoral collective bargaining, and where there are minimum service levels—if they are implemented at all; it is a moot point whether or not they are—they are within the framework of sectoral collective bargaining. The Minister will know that about 80% to 90% of workers in various areas in other countries are covered by sectoral collective bargaining, but that is not the case here. Will the Minister consider putting in place a structure for sectoral collective bargaining before we move to what is clearly unworkable legislation on this basis? While I am on my feet, perhaps I could ask the Minister to respond to my noble friend’s question about ACAS.

Lord Callanan: There are not just minimum service level obligations in other European countries, there are outright bans on striking. For instance, there are bans on border security strikes in Germany, Spain, Italy, France and Belgium. We are not proposing to go nearly as far as those countries have in banning strikes in these areas. We are merely suggesting that unions should provide minimum services during strikes. As for consultation, the legislation was drawn up very quickly and in haste. We have not been able to do all the consultation we would like, but noble Lords will be reassured to know that for the actual implementation of the secondary regulations—which will contain most of the detail—we will of course carry out full consultations.

Lord Foulkes of Cumnock: My Lords, I have to return to the European precedents that the Minister cited—the Prime Minister has cited them as well—starting with France. Can the Minister tell us how successful the legislation has been in France? How many fewer days of strikes were there in France last year, compared to the United Kingdom?

Lord Callanan: I cannot give the figures for the number of days lost in France to strike action off the top of my head. I will ask a rhetorical question: if the legislation will be so ineffective and have no effect whatever, what are the Opposition so concerned about?

Lord Foulkes of Cumnock: Will the Minister write to me with those figures? I think they will be very instructive. If he writes to me and puts a copy of the letter in the Library, we can use it when we come to debate this.

Lord Callanan: I am here to respond on what happens in the United Kingdom, but if the figures on days lost in France are easily available, then of course I will supply them.

Lord Clarke of Nottingham: My Lords, in principle, I am in favour of the Bill. Obviously, while we must preserve the worker’s right to take industrial action, no responsible person is going to go on strike  with consequences that might even threaten the life of fellow citizens if this is taken too far in some public services, such as the health service, at the moment. One would hope that in even the bitterest industrial dispute both sides would have in mind that their argument over whatever aspect of pay, terms or conditions they are at odds on should not lead to serious harm to the greater public good and, in particular, vital things such as people’s health and safety.
I am listening to this debate with interest to see how that essential level of service is to be determined. If we ever face a situation in which strikers are being totally unreasonable and trying to cause immense damage to further their pay claim, that raises all kinds of problems about martial law and everything else to try to keep things going. However, if an employer sets out the minimum level of service in their area—as will be required—how objective will that be? What judgment will be made about what is essential? In theory, could an employer say that all employees should stay at work to maintain an essential level of service? Is there a requirement for some consultation about that level? Can any challenge be placed to the level the employer sets down, short of legal challenge and an attempt for judicial review?
In the present circumstances, we would all like to be reassured that the bitter disputes going on in the public sector, which we all hope will be resolved, will not threaten people’s safety or vital national interests. However, how exactly will we check that the powers of the Bill will not be abused, with some public or private sector employer deciding its own definition of a vital level of employment? In debating the Bill, we will need to have considerable detail and give considerable thought to what it will mean in an industrial dispute in practice, day by day and on the ground, and how it will be applied.

Lord Callanan: I welcome my noble friend’s support for this legislation in principle. I am happy to reassure him that the minimum service level will not be set by employers; it will be set by Parliament through affirmative regulations. Of course we will consult widely on those regulations. There will be regulations in each individual sector because, as he correctly states, the level varies from sector to sector. This House will vote on those regulations when we bring them forward, but it is our preference not to have to bring them forward. As I mentioned earlier, the nursing unions are very responsible and agree minimum service levels already—voluntarily—so we therefore hope not to need to legislate there, but of course that is not the case for ambulance drivers, where we may need to take action.

Lord Brooke of Alverthorpe: My Lords, I regret that we are having the strikes; I speak with some background in the trade union movement. I urge the Government to be careful. They have had great difficulties in dealing with climate change demonstrators—it is extraordinarily easy these days to disrupt the operation of business in this country. I do not know what the Government would do if they set their minimum levels and they required the employer to get the employees to do the work, and all those employees went off sick. What action would they take and how would the law  stand? The Government should be very careful indeed before they move forward, and I am surprised to hear that they have not even consulted ACAS. If we do not watch out, we will go over some silly old ground that we have covered before which caused great damage to the country, so I urge the Government to act with care and caution.

Lord Callanan: I welcome the noble Lord saying that he regrets the strike action—I think that is the first time I have heard anybody from the Opposition say that they regret the inconvenience that has been caused to the public. I take in good heart his other comments; of course we will proceed with care and caution, and with full consultation. However, we are very clear that this action needs to be taken in some sectors, because the public are getting tired of the disruption caused by the actions of one or two unions to their ability to go about their daily business.

Lord Fox: My Lords, I will follow up on the point made by the noble Lord, Lord Clarke. It is quite clear that the Government will not be setting the personnel levels that companies will need to deliver the service levels that the Government are setting. It will be up to local management to decide how many people they need. The point that the noble Lord made was not addressed by the Minister; perhaps Second Reading will be a chance to go through that in more detail.
The Minister will have to address the point about sanctions. What happens if named individuals on work orders refuse to work? He says, “We have no intention to sack people” but essentially, if someone refuses to do something, that is grounds for sacking. There are two sides to this, and when we come to Second Reading, the Minister will have to be able to answer these sorts of questions on the operational detail that I was talking about. Can he undertake to come back on Second Reading with that level of detail so that we can move forward sensibly on this legislation?

Lord Callanan: As I said in my short remarks, the overall minimum service level will be determined in regulations approved by Parliament, and the noble Lord is right that the implementation of that—in other words, how many workers will need to turn up to deliver that service level, plus, presumably, a few for reserve, et cetera, for those who might be sick on the day—will need to be set by individual employers on the ground in response to the different circumstances that will apply. The ultimate sanction is the same as for anybody who does not turn up to work now: they are in breach of their contracts and they will lose their right to unfair dismissal protection.

Lord Pannick: The Minister makes the point that the regulations are crucial to the operation of this statutory scheme. Will he undertake that, when the House comes to debate the Bill at Second Reading and in Committee, draft regulations will be made available?

Lord Callanan: We will do our best to deliver the regulations in the first three sectors that we said we will legislate in, so that noble Lords will have a full opportunity to study them as we are debating the legislation.

National Security Bill
 - Committee (3rd Day)

Relevant documents: 10th Report from the Constitution Committee, 20th and 21st Reports from the Delegated Powers Committee, 5th Report from the Joint Committee on Human Rights

  
Clause 28: Offences under Part 2 of the Serious Crime Act 2007

Amendment 63A

Lord Purvis of Tweed: Moved by Lord Purvis of Tweed
63A: Clause 28, page 21, line 14, at end insert—“6 Paragraph 5 does not apply in relation to an alleged offence under section 44, 45 or 46 that relates to conduct involving—(a) the intentional unlawful killing of a person,(b) torture or inhuman, cruel or degrading treatment or punishment, or(c) the violation of a person’s sexual integrity.7 Paragraph 6 does not prevent a decision not to prosecute in the public interest.”Member’s explanatory statementThis probing amendment would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.

Lord Purvis of Tweed: My Lords, this debate concerns the intelligence agencies and what the appropriate procedures are within the rule of law where they authorise, are aware of, encourage or assist in the commissioning of an offence or are engaged, either at home or abroad, in relations with other agencies or bodies where the risk of breaches of the law arises. The Government’s intent seems to be to seek total immunity from any prospect of prosecution for actions at home or abroad; to widen the authorisation powers of the SIS and GCHQ under the Intelligence Services Act 1994; and to provide brand-new immunity to MI5 and all UK Armed Forces, thereby expanding the current practice to actions at home, which, up to now, have had no immunity.
At Second Reading in the Commons, the Government failed to make a convincing case. We continue to be concerned about such widespread immunity; this view is supported by the Joint Committee on Human Rights and the ISC. At Second Reading in this House, the Minister said:
“Section 7 ISA authorisations are not available in all the circumstances in which the SCA”—
Serious Crime Act—
“risks arise. Those authorisations primarily apply to overseas activities, meaning that Section 7 could not generally be used to protect officers when carrying out activities in the UK. Section 7 authorisations may be sought only by SIS and GCHQ, and not by MI5 or the MoD.”
He also said:
“The Government believe that UKIC and the Armed Forces should have a targeted protection that provides far greater clarity and certainty”.—[Official Report, 6/12/22; col. 155.]
However, he did not say why class authorisations that exist under the ISA would not cover these areas. We know that there have been considerable discussions, both in the ISA and elsewhere, about class authorisations rather than those that are specific. If the Minister could state why class authorisations for the SIS are not working, I would be grateful, because this is a major change.
For domestic activities, for example for MI5, there are the Security Service’s Guidelines on the Use of Agents Who Participate in Criminality and the authorisations issued in accordance with them. The terms of the guidance were made public in a redacted form in March 2021 during a successful appeal by the Government in the Court of Appeal, where a case arguing—unsuccessfully—that there was de facto immunity for the Security Service’s activities was heard. I quote the guidance, which said that
“it may sometimes be necessary and proportionate for agents to participate in criminality to secure or maintain access to intelligence that can be used to save life or disrupt more serious criminality, or to ensure the agent’s continued safety, security and ability to pass such intelligence.”
It goes on to say that an officer is “empowered” under the Regulation of Investigatory Powers Act 2000.
Paragraph 9 of the guidance is clear:
“An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution. Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.”
That is the current situation. The guidance goes on:
“In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.”
This is a scheme that up until March 2021 the Government said had been operating well. They have not made the case for why that needs to change significantly. The judgment also highlighted that the Security Service works under a memorandum of understanding between it, the police and the counterterrorism division of the Crown Prosecution Service. The judgment went on to tell us that there were corresponding protocols in Scotland and Northern Ireland.
Clause 28 of this Bill now allows otherwise criminal actions here in the UK which encourage or assist crimes overseas to be carried out, setting aside previous guidance. This is extremely broad and changes dramatically the practice and the operation of that current guidance, with little justification. I went into a little detail about the domestic situation because it illustrates how a process operates which allows proper intelligence work to be carried out while retaining no immunity from the rule of law. This will now be abolished with Clause 28. For the UK and abroad, as I have indicated and as we discussed at Second Reading, the SAS has powers under the ISA and, as I indicated, there can be class authorisations as well as individually targeted authorisations.
In the Government’s response to the ISC’s report on privacy and security, they went into a little more detail about class authorisations, but it was very clear that such authorisations are under the statutory oversight of the Intelligence Services Commissioner. Under Clause 28,  there would be no equivalent of this oversight, and that is a considerable diminution of the ability for there to be oversight of the operations of SIS and GCHQ.
One of the highlights of the Government’s annual human rights reports, the most recent of which was published in early December 2021, is the stress that they put on the human rights guidance on overseas security and justice assistance, or OSJA. It states that when the UK is working with other countries, primarily with their justice and security systems, on addressing threats such as terrorism, serious organised crime or conflict, a risk assessment process must be carried out prior to providing justice or security sector assistance. The institutions are relevant in this context, where the UK Armed Forces intelligence agencies are working with foreign bodies and their armed forces and the police, primarily their gendarmerie, paramilitary forces, presidential guards, intelligence and security services, coastguards and border guards—the list is fairly extensive.
The OSJA guidance sits alongside the Cabinet Office’s Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. Under OSJA guidance, before any work is undertaken with one of the foreign bodies, a risk identification process must be carried out on human rights concerns, specifically on whether assistance or co-operation might directly or significantly contribute to the use of the death penalty, unlawful or arbitrary arrest or detention, torture, unlawful killing, enforced disappearance, unfair trial, or denial of justice and unlawful interference with democratic rights. The checklist also states that there must be a risk system on violations of the right of the child, human trafficking, and persecution of an identifiable group. All these areas will now be swept away with a risk assessment process, because of this blanket immunity. If it is high-risk, Ministers must be consulted unless ministerial approval has already been given for the specific activity. This will include, for SIS, a 1994 authorisation, and under current law, Ministers must operate under the terms of the Serious Crime Act.
However, this guidance is now redundant, with the Bill removing a major component of the UK’s promotion of human rights by providing wide immunity to our Armed Forces. The Minister in the Commons, in making the case for this clause, stated that the current process created too much delay. He said:
“The impact of that approach is that vital and otherwise legal intelligence opportunities are currently being delayed or missed as the SCA risks are worked through”.—[Official Report, Commons, National Security Bill Committee, 14/7/22; col. 181.]
He promised to provide examples to the ISC. I would be grateful if the Minister can confirm whether those examples have been provided and if I can be briefed on those examples as the Front-Bench spokesman of my party. I have not seen any examples, demonstrating that there has been considerable delay.
The consolidated guidance for intelligence agencies exists because they do not have the powers of detention, either in the UK or overseas, that the Armed Forces may have. There has been considerable concern about the wide extension of this clause to all of the Armed Forces. Paragraph 7 of the guidance states:
“When we work with countries whose practice raises questions about their compliance with international legal obligations, we ensure that our co-operation accords with our own international and domestic obligations.”
This is now being changed dramatically.
Paragraph 8 of the guidance makes clear that, in carrying out their work, UK personnel retain “personal liability”, but it also states that
“the circumstances covered by this guidance may engage the responsibility of the UK—with the potential for damage to its international reputation.”
This, again, is being dramatically altered.
In 2019, the Government published The Principles Relating to the Detention and Interviewing of Detainees Overseas and the Passing and Receipt of Intelligence Relating to Detainees. There is equivalent Ministry of Defence policy as well. This guidance also covers staff of SO15 in the Metropolitan Police Service and officers of the National Crime Agency. Clause 28 refers only to
“the Security Service, the Secret Intelligence Service or GCHQ”
and the Armed Forces. It specifically does not relate to SO15, the Metropolitan Police or the NCA, and it does not mention employees of the Ministry of the Defence. Why is that? If it is to prevent the vulnerability of individual officers who would fall under the scope of the SCA, why are the Government being partial in this Bill and not being consistent with the existing Cabinet Office principles and the guidance?
Finally, I will refer to Amendment 64. I understand the case that will be made—I am sure it will be made extremely well—by the noble Lords, Lord Anderson and Lord Carlile. I would be grateful for clarification on my reading of Amendment 64. I have also read that, for the SIS and GCHQ, Section 7(4) of the Intelligence Services Act would cover Schedule 4 to the SCA 2007. I would be interested to know whether that reading of Section 7(4) is incorrect. I understand that Amendment 64 would reduce the scope from the Armed Forces and MI5, and therefore it is probably preferable, but it would retain the expansion for the SIS of immunity for domestic activities that support or potentially assist criminal activity abroad. It would therefore extend the current approach.
The Minister needs to make it clear why the expansions in Clause 28 are justified. The Minister in the House of Commons said:
“The clause means that … where an individual has operated in good faith and in compliance with proper processes they would not face the risk of liability for the offences under the SCA.”—[Official Report, Commons, National Security Bill Committee, 14/7/22; col. 182.]
But there is no way of knowing whether the individual has operated in bad faith and does not comply with proper processes, because all the guidance I referred to, setting out the proper processes, will be swept away. It is a general carve-out. If an individual working in good faith and in compliance would not face the risk of liability, is the Government’s position that, if they do not act in good faith and do not follow proper processes, the individual is still liable? There is no oversight by the independent commissioner and there would be no reporting requirements, so no one would ever know and there would be no duty on any of the agencies to make this clear.
I hope that the Minister, in responding to this debate, will be clearer than at Second Reading. I think that the justification the Government have provided is not strong enough. The expansions are far too strong. There are concerns that this would provide immunity, and there is a lack of risk assessment, for some of the serious crimes that I indicated. The preference would be for the whole clause to be taken out—I agree with the noble Lord, Lord Coaker, on our contention that the clause should not stand part—or at the very least for the Government to be very clear with regard to the interaction on the very serious offences outlined in my amendment. I beg to move.

Lord Macdonald of River Glaven: Before the noble Lord sits down, I just wonder whether he considers that there may be a difference between intentional killing, on the one hand, which may or may not be wrong, depending on the circumstances and context, and torture and sexual violation on the other, in respect of which it is very difficult to conceive that they could ever be right. Does he think that there may be a distinction?

Lord Purvis of Tweed: I understand the case. The Consolidated Guidance to Intelligence Officers and Service Personnel does not make the distinction. It does make the distinction that there is a lack of clarity when it comes to cruel, inhuman and degrading treatment and punishment. Our definitions of that may differ from those of some of our allies, or of others we are working with. For the other two areas, there is no distinction as provided for under the consolidated guidance. Indeed, the risk assessment criteria that all officers currently have to operate under—the checklist that exists within the guidance that they have to go through before entering into any of the security work with agencies—include all of these areas, including where senior personnel and legal advisers conclude that there is risk of torture or CIDT, and also lawful killing. This is in addition to what authorisations under the ISA may bring about.

Lord Evans of Weardale: My Lords, I listened with great interest to the argument made by the noble Lord, Lord Purvis of Tweed. I wonder whether I could ask the Minister, when he replies, to clarify the way in which the liabilities and immunities under this clause might impact, separately, the members of the intelligence services and the Armed Forces on the one hand, and, on the other hand, covert human intelligence sources, sometimes known as “agents” of the intelligence services, whose activities are authorised, I believe, under separate legislation. It does seem to me that it is very important that we should understand those two separate categories of action, and the way in which the proposed legislation would impact on those, because we are talking there about different legal regimes—although I speak as a lawyer and therefore I am willing to be corrected.

Lord Anderson of Ipswich: My Lords, that sounds right to me. Part 2 of the Serious Crime Act 2007 abolished the common-law offence of incitement and substituted three specific offences of encouraging and assisting serious crime. Schedule 4 expands the reach of Part 2 to the encouragement and assistance  of crimes which are committed, or intended to be committed, abroad. Its provisions have been described by the Court of Appeal as “tortuous”. Professor David Ormerod, the former Law Commissioner, has written of its “incoherence” and “excessive breadth of liability”. The noble and learned Lord, Lord Judge, probably has a full and comprehensive understanding of it, but few lawyers and judges do, and even fewer can explain it to juries. It has, accordingly, rarely been used.
Intelligence officials—from what they have told the noble Lord, Lord Carlile, and me—share in the general bafflement. They cite the risk that they will be prosecuted for acts which are judged, in retrospect, to have been capable of encouraging or assisting the commission of an offence by a foreign intelligence partner. They take only limited comfort from the defence of acting reasonably in Section 50, and from the public interest test applied by prosecutors. The uncertainty, they say, prompts them to act with caution so significant as to have an operational impact.
Clause 28 proposes to address the situation by granting immunity from prosecution, in transnational cases, to those who are behaving in a way that is necessary to
“the proper exercise of any function”
of MI5, MI6 or GCHQ. No clue is given in the Bill as to how this test is to be applied. Compliance with the principles relating to the passing and receipt of intelligence relating to detainees, to which reference has just been made, would doubtless provide the answer in many cases but, as has also been said, there will be others that fall outside their scope.
The same broad immunity would be granted to members of the Armed Forces, not only for activities in support of the intelligence agencies but for any activities which constitute a “proper exercise” of the functions of the Armed Forces—whatever that means. No one has so far explained to me why such a broad immunity for the Armed Forces is necessary, even in circumstances with no intelligence connection. I hope the Minister will be in a position to do so.
I understand that the Intelligence and Security Committee of Parliament has been invited to scrutinise the justification for the claimed special treatment. I expect that it will have been shown operational examples that the noble Lord, Lord Carlile, and I, during our relatively short visit, were not. I hope that, before the Bill advances further, the committee will tell us what, if anything, it has concluded and whether those conclusions are confined to the agencies or whether they extend to the Armed Forces as well. For my part, I have general sympathy with the concerns expressed to me by agency lawyers—who are, in my experience, highly conscientious people—but, like the noble Lord, Lord Purvis, I would feel happier if I knew that an independent person or body, such as the Intelligence and Security Committee or the Independent Reviewer of Terrorism Legislation, had examined the secret materials and pronounced confidently on whether the concerns expressed to us are justified across the full range of circumstances in which they are being advanced.
However, let us assume, at least for the purposes of this debate, that there is a real problem of unquantifiable legal risk translating into excessive caution and reduced  operational efficiency. Is the solution to place the agencies and the Armed Forces above the law? The question surely needs only to be asked for the answer to be apparent. We admire our intelligence and military personnel, with very good reason, but, be they never so high, the law in a democracy must always be above them. Modern intelligence co-operation means dealing with a wide range of international partners, some of them less scrupulous than others. Let there be no doubt that the crimes that some of them are capable of committing include some of the most serious of all: torture and unlawful killing. To remove all legal accountability for assisting and encouraging such acts, in particular by the sharing of intelligence, would send an unfortunate message to any person who might be tempted to cross the line. It would also send an appalling signal to the rest of the world.
Fortunately, two off-the-shelf solutions are available, each of them more palatable than Clause 28. The first is my Amendment 64, supported by the noble Lord, Lord Carlile, and the noble and learned Lord, Lord Judge. This would add activities caught by Part 2 to the scheme established by Section 7 of the Intelligence Services Act 1994—sometimes known as the “James Bond clause”, which the noble Lord, Lord Purvis, described, although it is certainly no simple immunity. Subject to further study of what he said, I do not think it does the trick without our amendment. Section 7 provides that those operating abroad, and in limited circumstances within the United Kingdom, are not liable for what would otherwise be crimes under UK law, but only if the commission of such crimes falls within the scope of an authorisation issued by the Secretary of State on tightly defined statutory grounds. Those authorisations, and the agencies’ compliance with them, are carefully scrutinised by the senior judges of the Investigatory Powers Commissioner’s Office—the successors of the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood—with the help of their skilled investigative teams. IPCO publishes its conclusions in its annual report, which demonstrates its exacting approach. The Investigatory Powers Commissioner, Sir Brian Leveson, would no doubt notify the Director of Public Prosecutions were it to find any illegality worthy of further investigation.
In this way, the requirements of the rule of law are maintained, and with three other advantages. First, and of some importance, IPCO scrutiny makes it more likely that any wrongdoing will actually come to light. Secondly, the agencies would not be exposed to police or prosecutorial investigations, unless, of course, they go beyond the scope of their authorisations. Thirdly, for any act within the scope of the authorisation the agencies have political cover from the Secretary of State, who would be unable to hang them out to dry. There would be some value in each of those matters, I would have thought, for the agencies themselves.
Like the existing Section 7, my solution would also apply to the Armed Forces to the extent that their actions are necessary for the proper discharge of a function of the security and intelligence agencies. Perhaps that limited application is all that the Armed Forces actually require, and I await the Minister’s comments on that.
The second off-the-shelf solution was sketched out by the noble Lord, Lord Carlile, at Second Reading: a statutory defence, additional to the defence of acting reasonably in Section 50, for acts which are necessary to fulfil the statutory functions of the intelligence agencies. Those functions would be defined in arrangements for which the head of each agency would be responsible. As the noble Lord said, that solution also has a precedent, although not one that includes the Armed Forces, in Section 13 of the Bribery Act 2010. I wondered whether the Government would pick up that invitation, but they have not done so—at least not yet. That is a shame; it would have been useful to be able to debate the merits of these two possible solutions with each of them on the table.
The dangers of Clause 28 were rightly and strongly flagged in the Commons, and either of these solutions would be a great improvement. What happens on Report will, of course, depend on the options that are before us, and I hope that before we have to select an option of our own the Minister will be able to give the debate some direction; first, by telling us when the security-cleared ISC or independent reviewer will be able to advise us of the extent of the problem in relation to the Armed Forces as well as the intelligence agencies; and, secondly, by indicating which way he proposes to go in response to that problem.

Lord Hacking: My Lords, I follow on from the early comments from the noble Lord, Lord Anderson, about the confusion and difficulties of interpretation of the provisions before us and similar provisions that have created certain headaches, which he referred to, for those who have a responsibility to enforce our laws. I have already complained about the length of this Bill, which has 65 pages and schedules of double that length. Once again, we are not having any thoughts about the users of the Bill, those who have to enforce the provisions of our legislation. I refer to members of the Security Service, the Secret Intelligence Service, GCHQ, police officers, lawyers—perhaps we have no compassion for their difficulties in interpretation, although I do as I am a lawyer—right up to the judiciary. I am sorry if I am bleating again about this problem, but it continues in our legislation and here is another bad example.
Since I am standing up, I shall make a few comments about the provisions in Clause 28. There must be extreme worry that they give Ministers and officials effective immunity from crimes such as targeted killing and torture. Clause 28 blocks accountability for Whitehall involvement in war on terror crimes and, to take a broader view, Clause 28 undermines the UK’s centuries of legal prohibition of torture-related crimes and the UK’s position when criticising other Governments for their crimes. One thinks of the example of the awful murder of Jamal Khashoggi in Turkey. Indeed, looking broadly at these provisions, one is reminded of President Bush’s tenure of office in the United States of America, when certain members of the Justice Department issued papers justifying torture, such as waterboarding and so forth, and saying that it fell within the constitution of the United States. This Bill brings out many of those unhappy memories.
As for the alternatives, we have had the alternative of the noble Lord, Lord Purvis, who said towards the end of his speech that he agreed with my noble friend Lord Vernon, and of course he is quite right about that. Oh, sorry; Coaker is his surname—I am referring to my noble friend Lord Coaker with extreme familiarity, and to his application to remove Clause 28 altogether.
I have not been able to study this in detail, but I am told that the provision proposed by the noble Lord, Lord Anderson—I mentioned this to him outside in the Lobby, just before we came in—does not go far enough to disable sanctuary to Ministers of State and so forth. We are not saying that they are going to commit these crimes, but our law should not permit those down the line to do so. It is all right for the top members of the intelligence services to behave themselves, but then you may not get the same dicipline down the junior line and there is misbehaviour that should be punishable and for which there should not be immunity.

Lord Beith: My Lords, the provisions of this clause and its defects have been set out very well by my noble friend Lord Purvis of Tweed, and there has been some really helpful analysis from the noble Lord, Lord Anderson.
I will just make a preliminary point. The inclusion of the Armed Forces in this provision is wholly inappropriate, simply on the basis that it is the wrong place to deal with what is a much wider problem and raises many other issues—battlefield situations; civilian situations such as we experienced in Northern Ireland, where we have had difficult court cases to deal with; and issues around the proper defence that veterans might wish to advance when involved in contentious matters. To push this into a provision about intelligence services does not seem the right way to deal with it.
One qualification that the noble Lord, Lord Anderson, made was that there may be a case for including actions of the Armed Forces in direct support of the intelligence services, but that is as far as I think it reasonable to go on an issue of wide importance that affects the international reputation of this country. I would rather we were simply dealing with the issue of how we provide the appropriate cover for intelligence services when they have reason to act outside the law. What an easier world it would be if we never asked intelligence services to act outside the law, but that is not possible. The range of things that intelligence organisations can become involved in if they are acting outside the law includes things that, on discussion and explanation, most people would find understandable and acceptable, right through to things that are utterly unacceptable—and which have happened. We think particularly of torture and rendition to torture, which has been our worst recent example. Many people would understand that, if you are dealing with a covert human intelligence source engaged with a terrorist group or some other group of people, at some point you will inevitably get into a situation in which both that source and the officer running that source have questions about what is permissible. You need a mechanism that can handle those things, and we thought we had one.
The provisions we have had until now have worked in a wide range of cases, and the ultimate recourse in difficulty is the decision of the Attorney-General on  whether a prosecution is in the public interest. On the face of it, it perhaps looks too limited in some ways but, as I say, for the most part it has worked. There is a case being made now that in some situations it is not sufficient, but to move from that to a general immunity, not restricted in the kinds of illegality it can cover, is worrying and dangerous. To do so by way of a system that does not embody authorisation at its heart is a really serious mistake, and I am glad that the noble Lord, Lord Anderson, touched on this.
It cannot be acceptable for an intelligence agency to be able to act in a way which goes outside the law, without having had to make reference to some democratic authority before doing it, whether by way of a class provision or because of the serious nature of the specific incident or action that is involved. Were we to allow that to happen, which will be the case if this provision goes through unamended, Ministers could then always say “I knew nothing about it—it’s not part of my job to know. I just tell them to get on with it and let me know when they’ve finished”. That situation is not acceptable for either Ministers or the agencies, which then of course take all the blame and have to make political decisions—for example, on whether taking such action is going to cause massive international complications. Should an intelligence agency decide that, or should it be decided at the highest political level? Of course, it leaves accountability out of the system altogether.
The accountability is inevitably limited by the nature of what we are talking about. It may depend almost entirely on the judicial forms of accountability which the noble Lord, Lord Anderson, helpfully described—the commissioners and the tribunal, supported also by the work of the Intelligence and Security Committee, which should be told more about the kinds of operation that have to take place. There are mechanisms to have that accountability, which will only rarely be able to be exercised on the Floor of this Chamber or that of the Commons because of the nature of what is being done, but there should be a process of authorisation.
What I fear out of all this is either Ministers being able to say, “This is all very regrettable, but I knew nothing about it”—when it is not something that Ministers would be consulted about—or a situation in which the service says, “We’d better not tell the Minister because it would be very difficult for him to authorise this”. These are great dangers, and we must not pass legislation which fails to address them.

Lord Carlile of Berriew: My Lords, as is his wont, the noble Lord, Lord Beith, started with a very cogent and important point. The issue about the Armed Forces is both legally and politically distinct. It hardly needs explanation in this Committee as to what those distinctions are, for they are evident to us every time one of those cases is considered.
It is also a pleasure to follow the noble Lord, Lord Hacking, whose return to your Lordships’ House is very welcome to us. He brings a richness of experience on issues which include the quality of the jurisdiction within which we live. Great attention should be paid to the point he made about the way in which our jurisdiction should retain its fundamental values.
In the provisions suggested by the Government in the Bill, I am afraid that I see the words “double standards” above the mirror every time one looks at them. Immunity is inimical to our system of law—full stop. Take the Khashoggi case as an example. I am not suggesting for one moment that we in this country would do anything quite as bad as that murder, nevertheless there could be other outrages committed. If we look at the Khashoggi case and the way that the country that committed that outrage has brushed it under the carpet of immunity, we see how dangerous it is to go down this slippery slope. I will not say a great deal more, but it is a particular pleasure for me to be able to take, as it were, the role of junior counsel to my noble friend Lord Anderson. He opened these amendments with superb and supreme clarity, in my view, and I would only muddy the waters if I said too much more.
I want to make a couple of other points, though. It seems to me that the existing involvement of the Secretary of State in at least some of the decisions to which we are referring does much more than give cover or protection to the individuals who might commit the acts complained of. It shows that political responsibility is taken for those acts, and it is real political responsibility because that Secretary of State is almost always accountable to the other place and will have been elected to it. Misleading actions on the part of, heaven forfend, any Secretary of State could have very serious repercussions in our democratic polity.
Retaining the role of the Secretary of State is therefore very important; it is one part of those standards which we should be upholding. It is important to remember always that we do not have a written constitution. When we are considering the constitutional implications of proposals made in Parliament, we therefore must look for bits and pieces of our unwritten constitution to find the assurance that we are acting and legislating in a proper way. That is what we are here for in your Lordships’ House, and the involvement of the Secretary of State is significant. I do not want to repeat what I said about Section 13 of the Bribery Act on a previous occasion; it has already been referred to by my noble friend Lord Anderson.
Finally, I will refer to the role of the Director of Public Prosecutions, and I apologise for repeating something I have said before. Whatever the evidence, facts and national security elements, when there is a proposal that there should be a prosecution, even if there is evidence that might realistically lead to a conviction, the second part of the Crown Prosecution Service code test requires that the Director of Public Prosecutions should consider whether it is in the national interest to prosecute. Of course, there will be cases in which there may be evidence of criminality but it may not be in the national interest to prosecute; for example, where there was some unrevealable and key national security information that could not be disclosed in a court, thereby meaning that there could not be a fair trial, or where the individual concerned was faced with an impossible decision at very short notice, possibly with only seconds to decide—maybe the seconds it  takes for the brain to send a message to the finger that is literally on a trigger. That seems to be a constitutional protection which is well provided for in the set-up and architecture we have. If we allow immunity, as the Government are asking, we will damage the quality of our law and our reputation among our allies in the world, and that is why I support the amendment tabled by my noble friend Lord Anderson, to which I have added my name.

Lord Judge: My Lords, I apologise for not being present at Second Reading; I was doing other business in the House. I feel particularly humbled, because if my noble friend Lord Carlile thinks that he was the junior to my noble friend Lord Anderson and therefore was short, I have reverted to something I have not been since 1964: a pupil. Pupils are allowed to take notes, but they are not allowed to say anything, and, if they do say anything, that marks the end of their pupillage—they are not wanted any longer. I hope noble Lords will forgive this pupil if I say just a few words in support of my noble friends.
Just look at Clause 28 and what it means. It means that we are creating an immunity from prosecution before any facts are known, before any inquiry has been made and before a crime has been committed. We are, in effect, rubber-stamping the possibility that a crime may be committed with no further investigation in public. We all understand that there must be cases of immunity: sometimes because the facts require it and sometimes because, to get at the facts, people are offered immunity if they tell the truth so that the worst features of a case can be grasped. We also recognise authorisations; that is an ordinary, elementary part of the system.
However, what if we say to a special individual or a special group of individuals, “Ah, you will not be prosecuted, whatever you do in any circumstances, because you are immune”? I hate to keep using this phrase in this Chamber, as I do from time to time, because your Lordships all understand it, but what is left of the rule of law if some of our citizens are entitled to break it with immunity and commit crimes with immunity? There is a perfectly good defence in the current Act, as the law stands, and there may be better defences. Indeed, I agree with and support the amendment proposed by the noble Lords, Lord Anderson and Lord Carlile. But what does Section 50 provide? It provides that an individual may, in circumstances that would otherwise be an offence, put forward that it was reasonable. That is a very good start. He may want the reasonableness of his behaviour—he will always want the reasonableness of his behaviour, if he really wants to prove that it is reasonable—to require an examination of all the facts. What happened? What was the situation? But that would be a defence, not an immunity, and there is a huge difference.
We all recognise, for example, that if someone is charged with an offence of violence, murder or serious bodily harm, of course he or she may say that they were acting in reasonable self-defence. They may ask for the circumstances to be looked at as they were. “Do not demand perfection”—as we do not—“in the face of an upturned knife or a gun, or a mob coming at me. Make sure that it is reasonable.” If the prosecution  fails to demonstrate that it was not reasonable self-defence, there has never been a crime at all. It is decriminalised, but that is not immunity.
When I looked at this, I asked myself whether the House of Commons Library statement on it was correct. It says:
“The provision therefore appears to be intended to extend immunity from criminal prosecution to actions which could not be proved to have been reasonable.”
I agree with that analysis, and I would like the Minister to refute it if he can. But that is rather shocking, is it not? You can argue that maybe the burden of proof in Section 50 should be amended so that the burden is not on the defendant to prove that he acted reasonably, and it is for the prosecution to prove that he acted unreasonably. You might do that—and you might, as I said earlier, create different defences. You might create specific defences for different parts of those covered by Clause 28, such as the Armed Forces and, if I can call it so compendiously, the Secret Service.
Can the Minister then ask himself what the difference is between acting reasonably in Section 50 as it stands and acting in the proper exercise of the particular function, as is proposed here? Are we really going to legislate that an unreasonable exercise of function must always be treated by previous decision as a proper one, for which there can be no consequences? If so, there is no difference. What are we doing? Is it consistent with the rule of law to grant anyone, or any group of people, immunity from prosecution for serious crime before any facts have been examined? While we are about the rule of law, where does that leave the unfortunate victim of the crime? It leaves them with nothing.
If it is felt that we need to amend any part of the law, as is proposed here, we need to amend Section 50 as I have suggested and we need to use the amendment that the noble Lord, Lord Anderson, proposed. We must create a specific defence that recognises that there are particular circumstances where criminal liability will not follow. We must create a reasonable self-defence issue for those who carry out these duties for us.

Lord Hope of Craighead: My Lords, I think we need to remind ourselves that the United Kingdom is a party to the torture convention. The amendment in the name of the noble Lord, Lord Purvis of Tweed, raised a red flag in my mind because, when I saw the word “torture” and the implication in his amendment that Clause 28 as it stands could extend to granting immunity for acts of torture, that seemed to me plainly contrary to our obligations under the torture convention.
It is worth remembering two things about that convention. The first is that all states parties to it are prohibited from authorising torture in any circumstance. It is also an unusual convention because it creates a universal jurisdiction; in other words, any state party which finds somebody who has committed torture within its jurisdiction, wherever he comes from, can prosecute that individual for the act of torture. The idea of granting immunity from acts of torture, which is what this clause seems to do, is a false idea because you certainly cannot do that with regard to other states parties to the torture convention.
It seems to me that Clause 28 is fraught with danger for that reason. Therefore, I very much support the amendment in the name of the noble Lord, Lord Anderson.

Lord Pannick: My Lords, may I add one footnote to the powerful speeches by my noble friends on these Benches? To confer blanket immunity may well have a counterproductive consequence, which is that the alleged victim may well be able to provoke the procedures of the International Criminal Court to be applied against persons in this jurisdiction. That would be extremely unfortunate.

Baroness Manningham-Buller: My Lords, I had not intended to say anything on this part of the Bill, not least because all these lawyers at various levels of leading counsel, pupil-master and so on do so much better than me. It seems to me that it is wrong in principle for members of the security and intelligence services to have immunity from the law.
I think that the noble Lord, Lord Purvis—the Minister may deal with this in his summing up—has confused the authorisations that are approved for CHIS activity involving criminality with what this part of the Bill seeks to do. I hope that in his reply the Minister will acknowledge the wide concern within the Committee, including from people such as me who have spent a career in the Security Service, and will consider an amendment to address some of these problems.
I quite comprehend that it is not necessarily easy to explain what the problem is that we are trying to address without revealing secrets but, again, I endorse the view that it would be helpful to hear what the ISC has thought on these matters. We heard from the noble Lord, Lord West of Spithead, at an earlier stage, that he and the ISC recognised that there was a problem that needed addressing. For my part, I am unable to support this as a solution.

Lord Purvis of Tweed: I am grateful to the noble Baroness and of course defer to her very considerable expertise in this area. The point I am seeking to make is that, from my understanding of the CHIS authorisations under the 1994 legislation, some of those will now no longer be necessary because of the blanket immunity under this clause. In fact, many of them will not be, because the authorisations for SIS to act abroad will now be expanded by this clause, with SIS being able to act here for supporting acts that are unlawful abroad as well as officers operating abroad, which is unlawful. The point that I was trying to make is that this clause brings the two together.

Baroness Manningham-Buller: I will have a short word with the noble Lord, Lord Purvis, afterwards in the dinner break, if he does not mind.

Lord Purvis of Tweed: Terrifying—please, no.

Baroness Manningham-Buller: The noble Lord may have confused covert intelligence sources as agents—I am sorry; this is terminology—and agents are not full members of the security and intelligence services. The Minister will answer this better than I can anyway; I am sorry to intrude again.

Lord Coaker: My Lords, I start by saying that if the noble and learned Lord, Lord Judge, is a pupil barrister, I do not know what on earth that makes me. We shall see.
I start with a comment that I know will be supported by all members of the Committee: if the story on the front page of the Sun is accurate, it reminds us of the debt of gratitude that we owe to the security services. They seem to have foiled a plot to import uranium at Heathrow this morning. If that is accurate, it is something that we in this Committee should note, because I know that the security services and those who work on our behalf in all these areas read our proceedings, and they should not mistake or confuse the very real debate that is going on here about the best way for us to go forward, and the best legislative context for us to have for our Armed Forces and our intelligence services, with any sense in which we underestimate or do not respect them fully for the work they do across the world in our interests.
I have objected to Clause 28 standing part of the Bill, and I thank the noble Lord, Lord Purvis, for his support, because, as it stands, the clause is unacceptable. The Government themselves have said in the other place and in previous debates that they are considering whether the clause needs amending and, if so, how. We all wait with bated breath to see where that has got to. The ISC has said it needs to change, and we know that even with the further closed briefings from the intelligence services to the ISC, it still believes that the clause needs amendment.
Amendment 63A in the name of the noble Lord, Lord Purvis, and Amendment 64 in the names of the noble Lords, Lord Anderson and Lord Carlile, and the noble and learned Lord, Lord Judge, are welcome and important statements of how the Government may deal with the many concerns raised in both Houses. The excellent contributions we had in support of them challenged the Government to say, if they are not the way forward, what is. The Minister’s response to these amendments will be very important and it will be interesting for all of us to know whether the Government are actually listening. Are these amendments to be accepted by the Government and, if not, why not? If they are not, can we expect a government amendment in good time for us to consider it before Report?
Questions that arise for the Minister if the Government do not accept these amendments are clear. The amendment in the name of the noble Lord, Lord Purvis, as he explained,
“would ensure that the immunity provided to Ministers and officials who assist or encourage crimes under the Serious Crime Act 2007 does not cover torture, murder or sexual offences.”
Indeed, the noble and learned Lord, Lord Hope, mentioned the issue of torture. If this is not to be accepted by the Government, can the Minister clearly and without any qualification say that none of this behaviour would ever be allowed if the clause were to be passed unamended? Remember, we are referring to murder, unlawful killing, torture or sexual offences. A clear and categoric ministerial statement, on the record, with no qualification or prevarication, would help the Committee enormously with respect to that amendment.
Amendment 64 would ensure—as I read it, and the explanatory statement confirms this—that high-level ministerial authority is fundamentally important. The noble Lord, Lord Carlile, made the excellent point that high-level ministerial authority must be maintained for the authorisation of the doing of such acts, rather than the weakening or even, as most of us believe, the exclusion of such authority, as Clause 28, as drafted, allows. Is that not the case? Why would the Government object to the maintenance of such ministerial authority, ensuring, in a democracy proud of its traditions, the importance of proper political accountability for decisions that are made? Again, this is a point that the noble Lord, Lord Carlile, and, I think, the noble Lord, Lord Anderson, made. Just as important, if not even more so, is that such ministerial authorisations would be under the supervision of the Investigatory Powers Commissioner’s Office—IPCO. This, under Clause 28, now seems not to be the case, whereas independent oversight and accountability seem to me, and I am sure to most of us in the Committee, to be an essential part of such a process.
We know the phrase in the clause as it stands,
“the proper exercise of any function”,
has also caused concern. What does it mean? Who decides whether it is proper or the breadth and potential scope of the phrase? If there is no independent oversight, as required by Amendment 64, who provides it and how? Something as sensitive and crucial as this cannot be left to a few individuals in a closed meeting in an office away from any public gaze or scrutiny. That is unacceptable in a democracy. As it stands, the clause is not acceptable and these amendments seek to improve it. As I and the noble Lord, Lord Anderson, have said, we will have to come back to this on Report, either to push an amendment or to agree or disagree a government amendment.
Very serious concerns have been raised about Clause 28 that cannot and should not be ignored by the Government. The ISC has said that the clause needs amending because it is unacceptably broad. Will the Government listen to it, if no one else? Even with the additional briefings, as I have said, it does not believe that Clause 28 is the way forward, even if it accepts that there is a problem that needs fixing.
In justifying Clause 28 as it stands, can the Minister answer some of the following questions? There are currently safeguards, such as ministerial authorisation, the reasonableness test so eloquently outlined for us by the noble and learned Lord, Lord Judge, under Section 50 of the Serious Crime Act and the fact that the DPP must be satisfied that a prosecution is in the public interest, as the noble Lord, Lord Carlile, properly reminds us time after time. I am grateful that he does so, because that point is lost; it is about not only whether a conviction can be secured but whether it is in the national or public interest for such a prosecution to be pursued. I have faith in the system. I believe that in most cases, if it is not in the public interest, it will not be pursued. That is an open decision that we can question to see whether we agree with it. Why have these safeguards been swept away with respect to such behaviour conducted abroad?
Can the Minister clarify what it means in Clause 28 for something to be necessary for the proper function of the UKIC or the Armed Forces, with no proportionality  required? Why have the Government diminished the role and accountability of Ministers in the decision-making structure? As the noble Lords, Lord Purvis and Lord Beith, asked, why does Clause 28 extend this immunity to the Armed Forces? If I have read it right, the Armed Forces have protection under Section 7 of the Intelligence Services Act. Have I got that wrong? Can the Minister clarify why Clause 28, as drafted, appears to extend these immunities to the Armed Forces? As the noble Lord, Lord Purvis, asked, will he give an example of conduct that is the proper exercise of any function of the services but is currently subject to the chilling effect of the 2007 Act and would therefore now be allowed under this Bill? Why can it not be authorised under Section 7 of the Intelligence Services Act 1994 as it stands?
This is an incredibly serious debate, as we have heard from the many contributions from noble Lords. We also know that a huge cross-section of Members of Parliament in the other place expressed their concerns, many with great personal experience. Dan Jarvis MP, Kevan Jones MP, Maria Eagle MP and David Davis MP made excellent speeches asking why the change is necessary and, if it is, why we cannot have something that deals with the perceived problem and commands support, including from our parliamentary oversight committee, the ISC. The ISC was set up specifically to be allowed closed briefings, so that it could advise us on what was appropriate for these difficult matters. How on earth can the Government command the respect and support of this Chamber if the ISC, the committee we set up to have oversight on these matters, does not agree with Clause 28? Why do the Government set themselves against what the ISC is saying and then wonder why we have doubts?
The excellent House of Lords briefing highlights the many comments expressing doubts, particularly the belief that immunity from prosecution for serious crimes committed abroad would be made much more likely and possible under this clause. As Jeremy Wright MP asked, can the Minister explain the difference between acting reasonably under Section 50—the noble and learned Lord, Lord Judge, made this point—and acting in the proper exercise of a function, as this clause requires?
We are rightly proud of the work of our intelligence services and Armed Forces, but we also have a responsibility as a democracy to set a legislative framework that sets, and is seen to set, high standards. Openness, transparency and accountability are part of the price of our democracy. As drafted, Clause 28 undermines these principles and needs at the very least to be seriously amended.

Lord Sharpe of Epsom: My Lords, I thank all noble Lords who have contributed to a fascinating and wide-ranging debate. If the noble Lord, Lord Coaker, is not sure where it leaves him if the noble and learned Lord, Lord Judge, is a pupil, I am under absolutely no illusions where I am left.
I turn to Clause 28, the Serious Crime Act 2007 amendment. I thank the noble Lord, Lord Coaker, for his advance notice of interest in this measure and the noble Lord, Lord Purvis, for our discussions to date  on this Bill. I also very much thank the noble Lords, Lord Anderson and Lord Carlile, who provided advance notice of their intention to table this amendment and have generously shared their time and expertise with me and the team on this measure, as the critical friends to the national security world that the Committee knows them to be.
I will speak to the purpose of the SCA amendment and the amendments tabled by noble Lords. Respectively, they seek to remove the SCA amendment in Clause 28 from the Bill and replace it with an amendment to Section 7 of the Intelligence Services Act 1994, or ISA, and to add to Clause 28 to ensure that exemption from liability for individual Ministers and officials who assist or encourage crimes under the SCA would not cover torture, murder or sexual offences. However, before I come to that, it is right to express our thanks to those who work tirelessly to keep us safe, as the noble Lords, Lord Anderson and Lord Coaker, did, while recognising that we should carefully examine any changes to the law which might regulate or enable their activities.
I will briefly tell noble Lords why Clause 28 is in the Bill and why the amendment to the SCA is necessary. In essence, it is vital that we solve an unintended consequence of the SCA which currently exposes those acting for our intelligence and security agencies—MI6, MI5, GCHQ: the UK intelligence community, which I will henceforth call UKIC—and our Armed Forces to potential legal jeopardy and limits their operational agility. This can limit their ability to keep the UK safe, including through our international collaboration with trusted partners, which is vital in the modern world.
The SCA creates offences when an act is done which is capable of “encouraging or assisting” an offence and the person intends or believes their act may encourage or assist an offence. These offences are complex and were predominantly introduced to ensure the police could tackle those directing serious organised crime—for example, capturing those who knowingly directed violence or the importation of drugs but distanced themselves from criminal conduct. There is no minimum level of contribution to the offence which may be encouraged or assisted; the contribution can be small and indirect and there is no need for an offence to be ultimately committed. I will come back to the noble Lords’ amendment, but say here that these are obviously not circumstances that always lend themselves well to pre-authorisation.
Clause 28 focuses on this very specific area of criminal law which is having an operational impact to the detriment of the UK’s security. It is not a general immunity and it would not change the application of all other criminal law offences. It does not make it legal to encourage or enable torture or rendition or solicit murder and does not limit the offence of misconduct in public office. In addition, Clause 28 does not remove civil liability or change either the UK’s international law obligations or UKIC’s or the Armed Forces’ rigid adherence to these obligations. I will come back to that in a moment.
At present, UKIC and the Armed Forces are required to carefully apply the provisions of the offences, sometimes at fast pace and in critical scenarios, as has been noted, and some of which may have life or death  consequences—all while they work with our international partners to help protect the UK. We are talking, for example, about sharing intelligence to combat terrorist attack plots. Delays and limits on activity arise solely due to SCA risks when otherwise seniors are clear that there is no wrongdoing and that the activity represents a proper function of the organisation. The offences in the SCA are therefore creating a “chilling effect”, as the noble Lord, Lord Coaker, referred to, across UKIC and the Armed Forces in the delivery of their mission, and impacting on their ability to keep our country safe.

Lord Beith: The Minister has repeated several times his reference to the Armed Forces, but, up to now, always in the context of support for intelligence organisations’ activities. It would be helpful if he could clarify—he is nodding; I think he is indicating that he might do so—whether the inclusion of the Armed Forces is intended to confer the immunity on their general range of activity or is intended to be confined to their support for the intelligence agencies.

Lord Sharpe of Epsom: The noble Lord has pre-empted me by about a second. A number of noble Lords have asked why the Armed Forces are included, including the noble Lords, Lord Purvis, Lord Anderson, Lord Beith, Lord Carlile and Lord Coaker. The Ministry of Defence collaborates with a diverse array of allies and partners, with intelligence sharing often forming a key part of such efforts. The Armed Forces also work closely with the UK intelligence and security community, helping to protect the UK from myriad threats overseas. The protection provided for in Clause 28 seeks to ensure that where our Armed Forces collaborate and provide authorised operational support with international partners, as with UKIC, support can continue without exposing individual staff or officers to personal risk of criminal liability. I hope that answers the question to the noble Lord’s satisfaction.

Lord Beith: It would answer the question if the clause was so defined as to limit the extent of the immunity to acting in support of the intelligence agencies. However, as I read it, it does not do that.

Lord Sharpe of Epsom: I will continue, but I will come back to that, if I may.
I want to return to the question asked by the noble Lord, Lord Coaker, and the noble and learned Lord, Lord Hope, seeing as we are talking about the application of this, and also to the point on torture. There will be no change to the UK’s other domestic and international legal obligations, including those under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and international obligations on assisting an unlawful act, which is Article 16 of the International Law Commission’s articles on state responsibility for internationally wrongful acts. I hope that is unequivocal enough.

Lord Carlile of Berriew: I apologise for interrupting the noble Lord. Before he moves on, could he give us two figures which I am sure he must know  or could be given very quickly? First, in relation to the security services, how many cases have there been in the past 10 years of the kind we are discussing in which the Director of Public Prosecutions has had to make a decision as to whether a prosecution should take place? Secondly, how many events have been affected adversely over that period by the existing state of the law?

Lord Sharpe of Epsom: I am afraid that I do not have those figures to hand. I am not sure that I will be able to get them, but I will do my very best to find out and come back to the noble Lord on that question.

Lord Purvis of Tweed: I am grateful to the Minister for giving way, and I look forward to that reply when it comes in writing. If I have this right, the Minister said that it makes no difference—there is no change—to the approach on unlawful killing, torture or cruel or inhuman treatment. Is he saying that this clause does not provide immunity in offering assistance to others who would be committing unlawful killing, torture or cruel or inhuman treatment?

Lord Sharpe of Epsom: As I said earlier, I think this is confined very much to the intelligence support by the Armed Forces—is that what the noble Lord is referring to?

Lord Purvis of Tweed: I am grateful. No, it is not. The Minister said that there was no change to the approach on unlawful killing and torture. My reading of this clause is that there would now be immunity for offering assistance to others to carry out unlawful killing or torture.

Lord Sharpe of Epsom: I do not believe that there is immunity for that, but I will clarify that if I am incorrect.
Moving on, caution when considering the legality of support to our partners is of course correct and will continue. However, the current impact of the SCA offences means that vital intelligence-sharing opportunities have been delayed or missed, even when UKIC and the Armed Forces are fully compliant with other legal and policy requirements, such as the Fulford principles and the overseas security and justice assistance guidance, which ensure, for example, that support to international partners is in line with our human rights obligations. I have the principles and guidance to hand. If anybody would like me to go through them in detail, I will, but they are long so it will delay proceedings. I will await an intervention, if any noble Lord wishes me to do that.
UKIC’s and the Armed Forces’ adherence to and compliance with the principles are monitored by the Investigatory Powers Commissioner’s Office—IPCO—via regular inspections, and they are also routinely scrutinised by the Intelligence and Security Committee. Ministers are directly accountable for the work of the agencies and the legality of their operations. When things go wrong, it is entirely right that there is scrutiny of and accountability for the organisations’ activities, and I commend the important work that the ISC and IPCO  undertake in this space. Meanwhile, any individual found to be working beyond the proper functions of the security and intelligence agencies or the Armed Forces will remain personally liable for those actions. This is right and fair.
However, I have heard the views of the House about this clause. The Government are in close consultation with the Intelligence and Security Committee, UKIC and the Armed Forces, and we are carefully reflecting on the views expressed and considering whether a change in approach is appropriate. It is important to note that those who have seen the very sensitive information which is relevant to this issue have agreed that there is a problem to solve—including the ISC, which has seen specific examples—and I am committed to us reaching a consensus on this matter.
Turning directly to the amendment in the names of the noble Lords, Lord Anderson and Lord Carlile, Section 7 of the Intelligence Services Act allows the Secretary of State to give authorisations for acts outside the British Isles, provided that the acts are done as necessary for the proper function of SIS or GCHQ—though not MI5 or the Armed Forces—and that the nature and consequence of the acts will be reasonable. These authorisations are clearly not currently available in all the circumstances in which SCA risks arise. I understand that this amendment seeks to address that gap and provide a solution to the application of the SCA offences. It also seeks to utilise an existing power for ministerial authorisation which is overseen by the Investigatory Powers Commissioner. These are obviously legitimate and valuable objectives. Section 7 authorisations provide a carefully used route by which the agencies can seek ministerial approval in advance of planned activities. They require Ministers to consider, in relation to specific acts, whether they are necessary and whether the consequences are reasonable. Once authorised, they can remove criminal and civil liability for those acts.
There will invariably be instances where the SCA risk does not manifest itself initially and becomes apparent only much later. Where a risk is not identified in advance, a Section 7 authorisation would not be sought to cover it. In these cases, those acting for UKIC or the Armed Forces would not be adequately protected should concerns about SCA offences arise later. Further, this scenario could lead to an unintended consequence of seeking to use Section 7 authorisations for hypothetical risks, creating an unhealthy reality in which more conduct is approved than would be otherwise without providing meaningful consideration of those risks. I am sure the House shares our desire to find a targeted solution to that problem. It would be a perverse outcome indeed if this well-intended amendment were to lead to less consideration of the SCA risks rather than more. Whether it is a class authorisation or a targeted one, as referred to by the noble Lord, Lord Purvis, the reasons why Section 7 authorisations are inappropriate remain the same.
In short, the Government do not believe that Section 7 authorisation is the best solution to the specific operational issue and do not believe it would improve the clarity of the application of the SCA offences to all the complex operational scenarios that arise in ongoing, carefully considered but agile international collaboration. It is  more desirable to remove this risk in a targeted way as per Clause 28, avoiding the burden of potentially missing, and/or the overuse of, Section 7 authorisations for SCA risks.
The noble Lords, Lord Purvis and Lord Beith, talked about criminal conduct and authorisation of this for covert human intelligence sources. I think they may have conflated this with the issue at hand. No amendment is being proposed to the criminal conduct authorisation regime which governs the action of agents. We are concerned here with support for our international partners’ activities, so I agree with the noble Lord, Lord Evans, and the noble Baroness, Lady Manningham-Buller, who articulated this point very well.
I now turn to the amendment from the noble Lord, Lord Purvis, which aims to table provisions which explicitly state that Clause 28 does not cover torture, murder or sexual offences. Again, it is a legitimate attempt to clarify Clause 28. However, it is one which the Government deem unnecessary for reasons that I have partly outlined already but will continue to set out.

Lord Coaker: Coming back to the amendment from the noble Lord, Lord Purvis, gives me the opportunity to return to an earlier comment from the Minister. Did he say in answer to the question from the noble Lord that he did not think we could assist others if they were conducting operations which involved torture, et cetera—that we could not support that activity? Was he going to clarify that and write to us, or clarify it later on the Floor of this Chamber?

Lord Sharpe of Epsom: I am going to do it right now: there is no immunity for inciting or assisting others to kill or torture.

Lord Purvis of Tweed: Could the Minister give a little more information as to why there is no immunity?

Lord Sharpe of Epsom: The noble Lord does not want there to be immunity.

Lord Purvis of Tweed: No. Why, under this clause, would there continue to be no immunity?

Lord Sharpe of Epsom: Perhaps I could get to the end and then clarify this. As I said earlier in relation to the SCA, I can confirm that the examples that the noble Lord, Lord Purvis, asked about have been provided to the ISC. As the noble Lord, Lord Coaker, pointed out, it has agreed that this is a problem that requires a solution.
It is vital to acknowledge that Clause 28 will not create blanket criminal law immunity or change the application of all other criminal law offences, including those criminalising torture anywhere in the world, as I have said a number of times. The UK remains committed and subject to international legal obligations, including under the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and international obligations on assisting an unlawful act under Article 16 of the International Law Commission’s articles on state responsibility for  internationally wrongful acts. The amendment to the SCA offences applies only when persons acting for UKIC or the Armed Forces are acting within the proper exercise of their functions. We do not consider that the activities that are of concern and the focus of this amendment would amount to the proper exercise of those functions. I hope that is clear.
I want to be clear that any individual found to be working outside the proper functions of the intelligence agencies or Armed Forces will remain personally liable for those actions under the SCA offences, as well as other applicable laws. Meanwhile, it will still be possible for legal challenges to be brought against the intelligence agencies and Armed Forces in relation to allegations of unlawful behaviour, whether in the form of judicial review, civil damages claims or through a referral to the Investigatory Powers Tribunal. That is exactly as it should be.
In response to the point from the noble Lord, Lord Carlile, I say that the Government’s position is that this amendment is not intended to, nor would it have the effect of, removing the role of the relevant Secretary of State from the oversight of the intelligence and security services.
The noble and learned Lord, Lord Judge, and the noble Lord, Lord Coaker, spoke about the current reasonableness defence and effectively why it is not enough. There is an existing reasonableness defence in Section 50 of the SCA, as has been noted, which was included in recognition that there may be occasions when it could be shown that an individual’s actions were justified in the circumstances.

Lord Carlile of Berriew: I am very sorry to interrupt the noble Lord again. He said that this would not remove the oversight of the Secretary of State and I absolutely accept that. Of course the Secretary of State will have oversight, but does the noble Lord accept that authorisation by the Secretary of State, at least in some cases, will no longer be a requirement?

Lord Sharpe of Epsom: I see where the noble Lord is coming from and, yes, I accept that.
I return to the reasonableness defence in Section 50. While we consider that properly authorised activity to protect national security should be interpreted as being reasonable, the application of the reasonableness defence to UKIC’s activity is untested.
I come back to one of the earlier points from the noble Lord, Lord Carlile. I am not aware of any prosecutions, but he will know that I cannot comment on operational matters.
I also come back to the questions about the CPS. The fact that the CPS would not be obliged to prosecute offers little comfort to those carrying out legitimate work on behalf of His Majesty’s Government, who may still be subject to criminal investigation for carrying out authorised activities in the interests of national security. The Government consider that we should be able to offer legal reassurance to individuals carrying out vital work to support those interests.
I finish by reiterating that I am committed to continuing to work with the experts in this House, particularly the noble Lords who have tabled the amendments we have debated, and those in the other place to reach consensus on Clause 28. I thank all noble Lords for their patience as we move towards that shared objective.
I have noted the comments from the noble Lord, Lord Coaker, on timeliness but, at the moment, the Government cannot support these amendments and I therefore respectfully ask noble Lords not to press them.

Lord Pannick: Before the noble Lord sits down, could I see whether I have understood him correctly? Is he saying that an act of torture or sexual offences committed in support of another country’s services could not be a proper exercise of the functions of the Security Service—the SIS—or GCHQ? If he is, would it not be better to have that on the face of the Bill rather than simply as a statement from the Minister?

Lord Sharpe of Epsom: That is what I am saying. I will come back to whether it should be on the face of the Bill in due course.

Lord Purvis of Tweed: I am very grateful for that last interaction between the noble Lord, Lord Pannick, and the Minister. I am also grateful for the Minister continuing to have a degree of open-mindedness. I do not know where I sit on the cascade of legal hierarchy, but I think it is lower order. I do not know if it is just me, but a frisson of nervousness went through my spine when the noble Baroness, Lady Manningham-Buller, asked for a quick word outside. If I could avoid that, it would be better.
I am well aware of the distinction between SIS officers working under a CHIS authorisation and what is covered under the ISA. I am also well aware of MI5 officers running agents who carry out criminal activity. The point I was trying to make is that there are clear distinctions and that we have procedures with regard to MI5 officers running agents who carry out criminal activity, but there is no immunity for them to do so. The point I made in my opening remarks is that the processes that MI5 has are effectively the defence. The concern with the breadth of this immunity is that those processes will no longer be the case.
I am also well aware of our international obligations, but it is under domestic law that we would realise what those natures are. Because of the extraterritorial nature of the schedule in the SCA, I am still not convinced in the reading of it that our intelligence services and Armed Forces would be able to operate under domestic law in offering assistance to others carrying out criminal acts. Those criminal acts may well also be breaches of international law. I am grateful for what the Minister said, but I am also grateful for his willingness to engage further on that.
I hope the Minister took on board the consensus with regard to concerns about the Armed Forces. The point I made at the start of this debate is that, unique among the SIS and GCHQ included within this, the Armed Forces have powers of detention. Therefore, the processes under way under the MoD doctrine for  risk assessments on torture, cruel, inhuman or degrading treatment, extraordinary rendition or rendition, and unacceptable standards of arrest and detention are all areas of considerable concern, if there is immunity for our Armed Forces when working with others.
Of course, the guidance that exists also includes the receiving of unsolicited information or providing or sharing information on collaboration. These risk assessment processes are in place—they are in published principles and guidelines—and the considerable concern is that they will be washed away by the extent of the immunity.
I am grateful to the Minister for being open. I still think that he has not sufficiently addressed all the areas of concern, not least that there would be a considerable diminution of independent oversight in the operation of this. I will withdraw my amendment at this stage. I accept the Minister’s word that he will engage fully before Report, and I hope he will be able to put in writing responses to all the issues that have been raised on this so that we can study it carefully before Report. In the meantime, I beg leave to withdraw the amendment.
Amendment 63A withdrawn.
Amendment 64 not moved.
Clause 28 agreed.

  
Clause 29: The foreign power condition
  

Amendments 65 and 66 not moved.

Amendment 66A

Baroness Jones of Moulsecoomb: Moved by Baroness Jones of Moulsecoomb
66A: Clause 29, page 21, line 33, at end insert “but, where the conduct or course of conduct is for the purposes of journalism or civil society activity, subsections (1)(a) and (2) may be satisfied only if the conduct or course of conduct is instigated by or under the direction and control of a foreign power within the meaning of subsection (2)(a) or (b).”

Baroness Jones of Moulsecoomb: My Lords, I do not get frightened easily, but we have talked a lot about nerves here, and walking into your Lordships’ Chamber earlier and seeing a dozen KCs, former judges and members of the intelligence community was slightly unnerving—thank goodness, they are leaving; that relaxes me enormously. I declare an interest as the mother of a journalist, although not one who works in this sort of area. A lot of journalists and organisations have contacted me to express serious concern about this National Security Bill, because things are not clear.
As it stands, there is a huge risk to whistleblowing and public interest journalism, and these legitimate activities—in fact, one could call them absolutely crucial activities for our democracy—could now put journalists at risk of serious criminal consequences. The so-called foreign power condition does not even distinguish between our allies and our adversaries. This will mean that journalists and NGOs will have to be careful when receiving information from any Government, even an innocuous press release from, for example, the United States Government or a local authority in France. Any information received from foreign sources which might reflect badly on the UK Government  could put journalists at risk of prosecution under this law; worse, the journalist would commit an offence just by receiving the information, without even publishing it. That is utterly illogical. Journalists have a right to inform the public and the public have a right to know. The Bill is therefore potentially very damaging for the freedom of the press. We rely on journalists to report on corruption of all kinds, so we must amend the Bill. I beg to move.

Baroness Hayter of Kentish Town: My Lords, I too did not speak at Second Reading. Unlike the noble and learned Lord, Lord Judge, who is no longer in his place, it was not because I was doing other things in the Lords but because I had not read the Bill. The fact that I have now looked at it brings me to the Committee today. Before I speak, I declare an interest both as a board member of the ABI, although that is not relevant to this amendment, and as a member of the Labour Party. The reason is that I speak to Amendment 68, to which I have added my name.
We will come to Part 3 later but the definition of “foreign power” in respect of Part 3, as spelled out in Clause 81(1), is in Clause 30. Clause 30(1)(e) covers political parties in government, or members of political parties that are in government. Schedule 14 exempts these, or at least the political parties in government, from the Clause 69 requirement to register. However, on a reading of it, it sounds as though that covers only foreign parties in government and not others. Therefore, I am not certain whether the Clause 14 exemption covers political parties in opposition. If it does not, political parties in opposition in other countries are covered as foreign powers.
I confess that some of the noble and learned Lords who have just left have been extremely helpful in giving me advice on this; in case your Lordships think that these are all my own words, I have had the benefit of extremely good advice on this. It sounds as though the exemption in Schedule 14 is only for the governing parties themselves and not necessarily for individuals of those parties or for those acting on behalf of political parties. It also appears that the exemption covers only registration and influencing, and probably not the activities of overseas political parties, even those from friendly states, such as Five Eyes states, with which of course we do a lot of business. So I think that those parties come under Clauses 65 and 66, according to the definition.
I hope the Minister will have enormous clarity when he spells this out in his reply, and I also hope that either the noble Lord, Lord Marks, or the noble Lord, Lord Purvis, will speak on this and can clarify it more than I can. It is interesting whether, if an overseas party—the US Democrats, for example—organised a dinner here, perhaps at Labour Party conference, that would need to be reported, and indeed with the threat of criminal proceedings if it was not. Would any of those political parties coming over here and having meetings with any of us count as activities and would they have to be reported within 10 days, and so on?
We also do a lot of joint working, in our case with the German SPD; we work on environment and trade, and a lot of other issues, and sometimes we buy them lunch—occasionally they buy us lunch. Is that covered  by what would have to be declared? Similarly, would we have to report meetings, perhaps with MEPs from across the European Union when they were over here, or is it only those from non-governing parties? Therefore, if we have a mixed group of MEPs coming here, would those from governing parties be exempt but not those in opposition?
If the Minister thinks he is fairly junior down the pecking order, I think I am the tea lady who brings in the tea to barristers, so I hope he will be able to clarify all of this and that it is just me who is confused. However, as my noble friend Lord Hacking said earlier, this legislation should be easy to read. It does not just have to be right in what we want it to say; it is incredibly important that anyone who could be affected by it can pick it up. I am not a lawyer but I am pretty involved in politics, and if I can read it and not understand a word of it—I may be at the stupid end —I doubt that anyone else will be able to.
Part of the reason for the next issue is that there has not been any pre-legislative scrutiny on this Bill, which would have clarified some of this; nor has there been any consultation on these issues. If there are going to be a lot of reports, particularly on political parties in opposition coming over here, we risk having such an enormous number of reports that they become meaningless. If all these activities get reported, the actual dodgy ones, if you like, may be hidden in plain sight.
I know that, either in giving evidence somewhere or in writing, Edward Lucas looked at the case of anti-money laundering. He showed that there are 3,000 reports of anti-money laundering a day; quite a lot of them probably come from your Lordships’ House since we are all PEPs and must be reported on. However, it means that, if you start getting that number of reports, they are meaningless because you cannot see the wood for the trees.
Later on—probably in the next day of Committee—we will come on to how all this will affect business, academics and investors. My concentration today is on friendly political parties from friendly states and the possible attempt to criminalise any work that they do on influencing decision-makers. If I have read it correctly, the Bill refers not simply to decision-makers in government but to their ability to try to influence a political party. In the case of the Labour Party—I am sure that other parties can speak for themselves—we are a member of international party groupings; for example, we are a member of the Party of European Socialists. Needless to say, when we have elections for a new president or general secretary, we are lobbied by overseas parties about who we should vote for. I hope the Minister is going to clarify that there is no way in which that attempt to influence a political party could possibly be covered, because my reading of the Bill is that it is close to it.
If the Government’s intention in all this is to get at the Chinese Communist Party, would it not be easier for them either to say that or to put in “political parties identified by government under a statutory instrument”? This would capture political parties, be  they the French Socialists, the American Democrats or whatever the equivalents of the Liberal Democrats and the Conservative Party are. There is also an underlying problem behind this. It seems to me that the Bill implies that all foreign political parties, which I believe are essential to democracy, are somehow suspect. The tone of the way in which that part of the Bill is written is dangerous and unedifying.
Can the Minister clarify what exactly the Government’s position is? If governing parties are foreign parties as defined in Clause 30(1)(e) but are exempt from both the requirements to register under Schedule 14 and the prohibition on carrying out unregistered political influence activities, does that exemption apply to individual party members—including committees and sub-committees of parties—or entities associated with the party? We could have coming here a policy group that is associated with a party that could be active here. Since the obligation to register applies not to the foreign principal but to the person directed by them, are the exemptions sufficient to cover them?
Then there is the issue of parties that are not in government. On good advice from somebody who is present in the House at the moment, they seem to be in a worse position because they are foreign principals under Clause 67 and are not exempted under the foreign powers exemption. It therefore looks as if any communication that they direct to an MP, a Member of the Scottish Parliament, a Member of the Welsh Assembly or a Peer for the purpose of influencing them would have to be registered—again, possibly on pain of criminal prosecution. Can the Minister make a distinction on whether overseas parties in opposition may be caught by this measure? How would he define them? At the moment, is America a Democrat country or a Republican country? The Republicans control the House, but there is a Democrat in the White House. Which one counts as a governing party if, as we read it, parties in government are exempted but those in opposition are not? Who runs America at the moment? Is this really what the Government want to do?
Also, could an individual be required under Clause 72(2) to provide to the Government information about any arrangements made? What safeguards against political abuse are there for provisions relating to providing confidential communication? It seems to me that this clause on political parties—indeed, trying to cover them in an important Bill about national security—is completely out of line with what I think is the Bill’s intention.

Lord Black of Brentwood: My Lords, I speak in support of Amendment 66A in the name of the noble Baroness, Lady Jones of Moulsecoomb. This really important amendment gives us a chance to look at the Bill’s potential impact on investigative reporting. At the heart of that is Clause 29. I declare my interest as deputy chairman of the Telegraph Media Group, which is a member of the News Media Association, and note my other media interests.
I support this Bill, which rightly tackles the grave threats to the security of our country; I am sorry that I, too, was unable to speak to that effect at Second Reading. I support this probing amendment because it highlights a substantive issue arising from the Bill that  relates to public interest and investigative journalism. Although more could be done—I will mention a couple of points in a moment—this is a limited, practical, technical amendment that does not in any way impact on the Bill’s vital central mission but deals with a serious threat to media freedom.
I do not for a minute believe that this Bill’s provisions will be used regularly to prosecute journalists but, crucially, I do believe that there are circumstances where it could be deployed to stop a major piece of investigative reporting—I will explain why—because of the subsequent chilling impact on investigative journalism, not least because of the rightly high, heavy sentences involved. I also think that there are major issues of press freedom globally on this point because the way in which we legislate in the UK, especially on issues of national security, tends to be copied in a much more dramatic fashion in far less democratic countries; this issue was powerfully raised in a letter from international press freedom organisations that was published today in the Times and which I co-signed as chairman of the Commonwealth Press Union.
I want to make one general comment before I come on to the specifics of this amendment. For more than 25 years, I have been involved in one way or another in major pieces of legislation that are not intended to have any impact on the media. However, unforeseen consequences often become apparent as they are scrutinised and the potential risk becomes clear. On almost every occasion, Governments of every persuasion have acted to amend a Bill to protect the legitimate interests of media freedom. I believe that this is one such occasion when the Government or this House should act when problems become evident. Where public interest journalism is concerned, we must always act with the utmost caution.
Let me explain the crux of the problem. Modern public interest journalism in a digitally connected world inevitably straddles national boundaries. It involves a combination of civil society and media organisations working together to report on leaked documents from the public and private sectors, the publication of which is genuinely in the public interest. It often relies on whistleblowers, who expose themselves to serious risk, and those who provide information that substantiates the truth of claims. The Panama papers and the Uber files are two such investigations, but this point also applies to straightforward reporting, such as that by the Daily Telegraph on Chinese influence in the UK and British citizens being placed on a Chinese watch-list; the reporting of the Daily Mail on the horrific experiences of female submariners on-board nuclear submarines; and the BBC’s story last year about a spy who used his status to terrorise his partner before moving abroad to continue intelligence work while under investigation. You can see how arguments might be made about any of these reports potentially being of use to a foreign intelligence service.
The problem arises because of the wide definitions used in Clauses 1 and 3 and particularly at the foreign power condition in Clause 29. Together, they could potentially criminalise one of the core functions of journalism: reporting on leaks of information about Governments, organisations and companies. They could cause problems for civil society organisations that  work legitimately with journalists on investigations if those organisations are funded by foreign Governments, many of whom, like the United States, are of course sympathetic to the UK. They could cause serious problems for sources, who might reveal restricted information such as trade secrets when disclosing information clearly in the public interest to organisations that accept financial assistance from foreign states. They could cause serious problems for those collaborating with UK and international organisations which receive funding from foreign Governments. The admirable Organized Crime and Corruption Reporting Project, to take one such case, receives donations from the US Department of State and the Ministry of Foreign Affairs of Denmark. As we have heard, there is no distinction in the Bill between hostile and friendly sources of funding which would provide protection for such collaboration.
These might all be theoretical issues, as I am sure that my noble friend will say. When it comes to media freedom, history shows us that we must take the utmost care with problems of theory. However, one issue is most certainly not theoretical: the chilling impact that results from the combination of all these pitfalls and from this clause. When the potential sanctions under the Bill are so grave, would whistleblowers really want to take the risk? Would those involved in an investigation who might be needed to corroborate information be willing to take the chance? Would journalists want to put themselves and their editors and publishers in jeopardy? Would civil society organisations affected be prepared to do so? I suspect that the answer to all those questions is no, which would have significant repercussions for investigative reporting, particularly on international matters, something that the Bill never intended to do. The key point is this: journalists and whistleblowers may fall within the scope simply because they ought to have known a story about how a Government might assist another country. That is an incredibly low bar and cannot possibly be right.
The Bill does not need major surgery to deal with these issues. Instead, it needs the tightening up of the foreign power condition and the wording in Clauses 1 and 3. Ideally, as well as looking at this amendment, the Government will think again about Amendments 65 and 66 tabled by the noble Lord, Lord Marks, which have already been debated. Sadly, I was unable to contribute to that debate. Further technical amendments and tweaks to language will be needed in relation to the search powers in Schedule 2. Amendment 75 tabled by the noble Lord, Lord Marks, which I support, would also be helpful.
There must be a holistic approach to the problems of journalism arising from this Bill. I would be grateful if my noble friend could look again at that issue in the light of this debate and consider two points, both of which arise from the amendment moved by the noble Baroness, Lady Jones. First, “ought reasonably to know” in this clause is a low bar when the Bill is aimed at those who absolutely know what they are doing because they are involved in espionage. Let us raise the bar and not potentially criminalise whistleblowers—who already put themselves in serious danger—civil society organisations and journalists by taking that criterion out.
Similarly, we should ensure that the Bill’s provisions are aimed at those deliberately carrying out something which they know prejudices or is intended to prejudice the safety, security or defence of our country, not those who stumble into the purview of criminal sanctions while doing their job in the public interest. I am very grateful to the noble Baroness, Lady Jones, for tabling Amendment 66A, as it deals with a serious problem in a technical and proportionate way that in no way undermines the vital purpose of the Bill.
I very much hope that my noble friend is able to respond positively to this debate, either by bringing back an appropriate government amendment protecting media freedom on Report or, at the very least, giving a powerful signal from the Dispatch Box that the Bill is not aimed at journalism and those who work with journalists, or at hampering investigative reporting.

Lord Marks of Henley-on-Thames: My Lords, as the noble Baronesses, Lady Jones and Lady Hayter, and the noble Lord, Lord Black of Brentwood, have explained, this group concerns the definition of “foreign power”, both for the application of the foreign power condition and for the Clauses 3 and 15 offences concerned with assisting a foreign intelligence service and obtaining benefits from so doing.
The noble Baroness, Lady Hayter, also raised a number of further and very interesting points in relation to political parties affected by the Clause 30 definition of “foreign power”, not only in relation to the offences but because, by Clause 81, the definition in Clause 30 of “foreign power” is incorporated into Part 3, on “Foreign activities and foreign influence registration scheme”. I will be interested to hear the Minister’s reply to the detailed questions that she posed. Interestingly, there is no reference to foreign powers in the definition of the prohibited places offences under Clauses 4 and 5. I invite the Minister also to explain why that is, so that we can consider his explanation before Report.
My noble friends Lord Purvis of Tweed and Lord Wallace of Saltaire and I have tabled Amendments 67 to 71, with the noble Baroness, Lady Hayter of Kentish Town. As we have said before, we are concerned that the move to defining national security by reference to the activities of foreign powers, whether hostile, indifferent or friendly, threatens unintended and undesirable consequences. The noble Baroness, Lady Jones, and the noble Lord, Lord Black of Brentwood, outlined the risks to journalism or civil society activity from the Bill’s definition of “foreign power”, and they were right to do so. However, more than journalism and legitimate campaigning may be threatened. Citizens’ legitimate co-operation with foreign Governments or their agencies may be criminalised—Governments who, while friendly, may not share all the political, diplomatic or strategic aims of the United Kingdom Government.
Our concern stems partly from the breadth of the expression,
“prejudicial to the… interests of the United Kingdom”,
interpreted, as we have heard, in line with the 1964 decision in Chandler v DPP, as meaning contrary to what the Government of the day perceive those interests  to be. A citizen could fall foul of these provisions on issues as disparate as environmental policy, energy policy, immigration or asylum policy, or aspects of economic policy. Even opposing views on the right way to handle industrial relations, a topical issue, might lead to some campaigning co-operation with a foreign Government being classified as seriously criminal behaviour.
Relevant conduct may also arise on occasions where the British Government or their military or commercial agencies are guilty of misconduct. On the second day in Committee, the noble Lord, Lord Carlile of Berriew, with a minor prompt from the noble Lord, Lord Butler of Brockwell, mentioned the case of Clive Ponting, in the context of juries declining to convict those who expose wrongdoing even where, as in that case, the judge had directed the jury that Mr Ponting’s defence offered him no defence in law. Your Lordships will remember that the case arose from the sinking of the “Belgrano” during the Falklands War, and concerned his disclosure of the falsity of government information about the position of the vessel and her direction of travel at the time that she was sunk.
I raise the case not only to reinforce the point made by the noble Lord, Lord Carlile, that this was a result we would all wish to avoid but to point out that Governments do commit wrongs and that it can be grossly unjust to criminalise behaviour exposing such wrongdoing. Such behaviour may well involve co-operation with agencies of a foreign power. It may be inimical to the interests of the UK Government of the day but, equally, such co-operation may be necessary to expose our own Government’s wrongdoing or change their behaviour.
We seek to amend the definition of foreign power to mitigate these risks. Amendments 67, 68 and 71 would remove altogether governing political parties of a foreign power from the definition. We believe that casting the net so wide as to encompass all governing political parties is unnecessary and wrong in principle. I say that entirely taking on board the point made by the noble Baroness, Lady Hayter, about the difficulty of defining a governing party, where different governing parties hold different positions in different parts of a country—as in the United States. It may not be so obvious in relation to the national Government here; we have a single party in government and a doctrine of collective responsibility. But, even here, political parties do not simply ape the views of Governments of their persuasion, as many former Ministers of all persuasions might attest; nor do they speak with one amorphous voice. However, where you have Governments who are coalitions of parties, often loose ones, including all governing political parties within the definition of a foreign power becomes ridiculous. Many European and other nations are in just that position.
Amendment 70 would remove NATO members from the definition of a foreign power and would give the Secretary of State power to remove other nations from the definition by regulation. This legislation should be directed strictly to our national security and to the defence and security of the United Kingdom. We regard it as wrong in principle to define as a threat to national security those friendly nations to which we are bound by a treaty of shared defence and mutual  support. The NATO treaty has been the bedrock of our national security since 1949. The Bill is simply wrong to define NATO members as foreign powers, so that for our citizens to co-operate with them risks their being criminalised as threatening our national security. We also suggest that there may be other friendly nations which the Government would accept should not be classified as foreign powers for this purpose. Our amendment allows for that.
Amendment 69 represents a move in the other direction from that which we have pursued elsewhere in the Bill, by widening the Bill’s ambit to define a foreign power to include
“a corporation or other economic or political entity that is in practice working on behalf of a foreign government, whether pursuant to contract or otherwise.”
The present definition excludes bodies which are in fact doing a foreign Government’s bidding and are not within the category of an agency or authority or part of a foreign Government, within the meaning of Clause 30(1)(c). Such a body may be an entirely independent private or public sector corporation or an unincorporated organisation, possibly employed under contract, or a loosely aligned body which is not a formal agency of government. The ties may nevertheless be so close as to be obvious, yet such bodies are excluded from the Bill’s present definition. I would appreciate a response to that point when the Minister replies.
This is a very difficult area for those of us who support the overall aims of the Bill but nevertheless wish to see it drawn sufficiently tightly to achieve those aims without going further to the detriment of personal liberty. The Bill needs tightening, with careful thought being given to this definition.

Baroness Stowell of Beeston: My Lords, I declare an interest as the chairman of the Communications and Digital Select Committee. It was because I was chairing a meeting of that committee that I was unable to speak at Second Reading.
I will speak briefly about the potential effect and unintended consequences of this important legislation on investigative journalism. Before I go any further, I should say that I am grateful to the noble Baroness, Lady Jones, for the opportunity to debate this matter. As my noble friend Lord Black already explained, comprehensively and very powerfully, the potential chilling effect on legitimate journalism is of particular concern. That is real and we must find a way of avoiding it, without diluting the intentions and objectives of this Bill, which I, like other noble Lords, support.
I am grateful to my noble friend the Minister for meeting me and others, with some of his officials, in December to discuss our concerns. I look to him for reassurance that the Government remain alive to this problem and open to discussion. I am not sure whether Amendment 66A from the noble Baroness, Lady Jones, is the answer to the problem; it may need to be combined with Amendments 65 and 66, which have already been debated. As my noble friend Lord Black already said, what we need here is a holistic approach to the point in question, which is around making sure that important investigative journalism is able to continue.
As a result of this very important legislation, I would not want, for example, deficiencies in military equipment that cost the lives of our Armed Forces not to be exposed. That example was put to me by some of the media organisations that have been in touch. They reminded me that that particular piece of journalism led to a change in the then Government’s commitment to defence expenditure and, subsequently, a ministerial apology—albeit several years later in a public inquiry. I do not want us to legislate in a way that risks journalists not exposing these important matters, if they fear that doing so would lead to them committing a crime that would attract serious penalties. I support the arguments that my noble friend Lord Black has put forward, and I look forward to my noble friend the Minister’s response and, as I have already said, to our continuing discussions on this matter.

Lord Wallace of Saltaire: My Lords, my name is on Amendment 70 and I want to speak to Amendments 68 and 71. I stress that, in getting this Bill right, we need to make sure that it does not lead to a level of overreporting that swamps the Home Office, with a great deal of cynicism and a negative reaction from those who are asked to do the reporting. In the last week, I have received a dozen representations, not just from media and academic sources—the liberal metropolitan elite, whom the Minister may regard as not terribly important—but from the City and commercial enterprises, which are as worried about the negative impact that the Bill could have on their international activities as those in universities are.
I admire the speed with which the Minister talks when he responds to our questions, but I hope that he is carefully considering the reasoned and sometimes expert criticisms that we have of this Bill, that he is more concerned to get the Bill right than to get it through and that, between Committee and Report, we will have some long, further conversations on particular aspects of the Bill about which the House has been concerned.
To expand on that a little, I thought the Minister was a little flippant about my suggestion that there were non-state threats from the right in a number of countries, including the United States. He may have been following the attempted coup in Brazil. The reports of it that I read suggested that the Conservative Political Action Coalition in the United States was actively tweeting in support of Bolsonaro and may well have provided funds, and that Steve Bannon and his organisation were also actively in support of Bolsonaro. These things should worry us as much as terrorist and state threats, and this is another dimension that we need to think about in this Bill.
We know that foreign money has come into this country, that there have been some very odd things, such as the Conservative Friends of Russia element, in which the right has appeared to work with what we regard as the foreign left. Those sorts of things need considering. I look forward to the letter that the Minister will be sending me shortly—I hope—on the question of spiritual injury, which the discussion last week suggested is unenforceable and almost undefinable, and therefore should not be in the Bill. I also hope that we will have further discussions on the impact on  diaspora communities and dual nationals, because the extent to which our diaspora communities have relations with parties in the other countries to which they have links, and with the Governments of those foreign countries—be it Pakistan, Israel or wherever—is going to be complicated further by the Bill. We need to get to the end with an Act which commands public acceptance and public consent. Incidentally, it is likely to come into effect just before the next election, and if there was an adverse reaction to its implementation, the Government are likely to suffer.
Some of us have seen the letter that Kevin Rudd sent to the Australian Government in response to their scheme some years ago, in which he lists the 35 foreign powers with which he was involved in 23 different capacities. I was thinking last night that perhaps I ought to try this for myself: I have been active in Liberal International. I am sorry that the Conservative Party withdrew from the European People’s Party, and has many fewer international links, except with the Republican Party in the United States, than the Labour Party or the Liberal Democrats, but part of the life of someone concerned with international issues in the Liberal Democrats is to meet liberals in government, or not in government, in a range of other countries.
I used to chair the UK-Netherlands forum, to regularly attend the Brussels Forum, and was for 10 years the research director of the Transatlantic Policy Forum, in the course of which I became very friendly with a number of Congressmen, Senators and others; one of my closest friends from that period is now Deputy Secretary of State. That is not dealing with a hostile country, nor is talking to US Senators. My colleague, the noble Lord, Lord Campbell of Pittenweem, is a member of the North Atlantic Assembly; he does that on a regular basis. We need to be very careful not to get into positions where people start thinking: “Should I report this? Do I need to report this?”
What about the occasions on which I have spoken to meetings of former students of the London School of Economics or St Antony’s College, Oxford, in Berlin, Brussels and Helsinki? At one point, I found myself in the sauna of the president of the Finnish central bank, chatting about British politics and Europe. I should probably report that, and say what I was wearing at the time.
Britain declares itself to be a global country—global Britain—a science superpower, a world financial centre, and a leading democracy and open society. The Bill needs to be compatible with those objectives, not getting in the way of them. If we say that this applies every time one meets someone in authority in Washington, Paris or Berlin, that is absurd and contradictory to our principles. At the very least, we need to think about which countries we care about and which countries we are relaxed about. We have friendly countries, democratic countries; we should not intend to treat them as if they were China, Russia or Iran. Those are the purposes of these amendments, and we should have further dialogue on that. I would say that, having taught students from foreign countries on many occasions—my wife and I, between us, have taught two Prime Ministers, a President of the European Commission and various others—we  meet them occasionally; that is not unusual. There are many others involved in politics in Britain who have similar international links. How does this cope with the sorts of informal conversations on shared approaches to the international order which we all have on those occasions?
I think that this is too complicated and far too bureaucratic, and we need to think carefully how we tighten and narrow it, in order to win and hold public consent and produce an Act which will last for 10 to 20 years, and not just until the next Government come in.

Lord Faulks: My Lords, I will not be disclosing quite as much as the noble Lord, Lord Wallace, did, but I will disclose that I am the chairman of the Independent Press Standards Organisation, and it is in that context that I want to add a few remarks. I am also grateful to the noble Baroness, Lady Jones, for her amendment giving those of us who are concerned—I am sure that I speak for the whole Committee—about the potential effect, no doubt unintended, that the Bill might have on press freedom. I do not want to rehearse all that has been very well set out by the noble Lord, Lord Black, and the noble Baroness, Lady Stowell. What is vital, of course, is to think what potential chilling effect this might have on journalism, particularly public interest journalism.
One point that is perhaps worth emphasising is how expensive public interest journalism is, how heavy it is on resources and how easy it is for editors to say: “Look, this is far too difficult; you may not get what you want, it is expensive, and what is more it may be unlawful.” If you look at Clause 3(2) of the Bill, and are thinking about running a story to do with armaments, as the noble Baroness, Lady Stowell, said—I think that she was probably referring to the Snatch Land Rover issue; she confirms that that was the case—then you might well say to yourself that this is highly risky, because we are going to run a story about something which would be of interest to a foreign power with which we might be in conflict. It is just that sort of thing which this, in the absence of some sort of tailored amendment to the Bill, would have the unintended consequence of not just putting a journalist at risk but of somebody simply saying that they are not going to do the story or spend money on this.
So I hope that the Minister, who is otherwise preoccupied at the moment, may be able to consider these matters carefully, knowing how important public interest journalism is. I should say that I received some briefing from the Guardian. Although IPSO regulates 97% of those publications that we receive, it does not regulate the Guardian, so this does not in any way influence the job that I have.

Lord Pannick: My Lords, I share the concerns which have been expressed in this debate about the breadth of Clauses 29 and 30, particularly in relation to public interest journalism, as expressed by the noble Lords, Lord Black and Lord Faulks, and the noble Baroness, Lady Stowell.
One of the problems is that Clause 29(2)(c) ensures that the foreign power condition applies merely because there is
“other assistance provided by a foreign power”.
That is an incredibly broad definition. The provision of information would potentially fall within the scope of that definition. There is also the concern, which has been explained by the noble Lords, Lord Marks and Lord Wallace, that the foreign power definition in Clause 30(1)(e) extends to a political party—not just to political parties generally but, as Clause 30(2) makes clear, to any party which has any member of the Government in a coalition. So it extends very broadly, particularly in Europe, to any number of political parties.
The noble Lord, Lord Marks, made the point that one of the mischiefs here is that there is no attempt to exclude governing parties in our allies—NATO countries, Australia, New Zealand and Five Eyes countries—which is quite extraordinary. The anomaly is even greater, because if the Committee looks at Clause 30(3)(a) there is a specific exclusion for any political party which is
“a governing political party of the government of the Republic of Ireland”.
I would be very grateful if the Minister could explain why there is that specific exclusion —not that I have anything against the Irish—but not for any political party that operates in our other allies, particularly NATO allies. The anomaly is even greater, because it is not beyond the realms of possibility that, in the next few years, Sinn Féin may be a political party that is part of the Government of the Republic of Ireland, possibly in a coalition.
None of this makes any sense. Could the Minister please clarify, explain and reflect on whether this is really a sensible way to proceed?

Lord Purvis of Tweed: My Lords, I wish very briefly to follow that excellent point, because the Government have not been clear in ironing out the anomalies in the definitions. The noble Lord, Lord Pannick, and others are absolutely right in agreeing with the noble Baroness, Lady Hayter, who raised this point.
The reality is that a junior party in a coalition Government, which might be under some form of political arrangement that is different from ours and which could be one of our sister parties, could be considered to meet the “foreign power condition” in the Bill. A person’s conduct could then fall foul of Clause 29(5) if that person
“intends the conduct in question to benefit a foreign power.”
I would like to benefit my liberal sister parties’ prospects in other countries by working with them on a philosophical basis, and vice versa. That is why we exist as political parties. The Bill would consider that conduct to be intending to benefit a foreign power. That surely cannot be right for an open democracy when we want to encourage political parties.
Not only that: before the aid cuts, we were spending considerable sums of money through the Westminster Foundation for Democracy to develop political party links. So we have on the one hand the Government funding the WFD, encouraging and in fact paying and providing support to parliamentarians to work with sister parties, and on the other saying under the Bill, “By carrying out the work that we’re funding, you’re also aiding a foreign power”, which is nonsense. At the same time, there is a concern that, under the definition  in Clause 30(1)(c), a foreign public sector broadcaster, for example, could be considered a foreign power under the Bill, so any journalists working with, say, CBC in Canada would fall foul of the Bill because that would be an “authority” of a foreign power, unless specific changes are made.
There is also the point that my noble friend Lord Marks made. Part of the anomaly is that the Bill creates too many difficulties for journalists of state broadcasters to operate and potentially has a chilling effect on sister party collaboration, which the Government themselves seem to promote and support, but at the same time it does not include private sector enterprises that, although they are not formally an agency or authority of a foreign Government and a foreign Government is not responsible for their affairs, could include a private sector sovereign wealth fund of a state, which might or might not be listed on a stock exchange and which may or may not, in effect, be a private sector arm of the interests of a foreign power. So any interaction we have through the strategic interests of a wealth fund of a Gulf state, or of a private sector enterprise that may or may not be established and fully operational in the private sector but which our intelligence agencies say is, in effect, an arm of or has some interaction with the Communist Party of China, is not covered.
The anomalies in the “foreign power condition” need to be ironed out. These amendments will help in that way. I hope the Government will be able to provide greater clarification.

Lord Ponsonby of Shulbrede: My Lords, we of course support the overall aim of the Bill. We also support the overall aims of the part of the Bill these amendments seek to address. The noble Baroness, Lady Jones, introduced this group, for which I am grateful. She said that she is the mother of a journalist; I am the father of a journalist.

Baroness Hayter of Kentish Town: Same one?

Lord Ponsonby of Shulbrede: No; I cannot respond to that gallantly, can I? I will plough on.
Interestingly, my son recently completed a master’s in journalism at City, University of London. He told me that the public interest part of the journalism course was the least attended, partly because there are fewer jobs in it, which I thought was interesting and worth reflecting on. It is a very important part of any journalist’s work, but it is not where the majority of students choose to study. I thought that was an interesting observation.
The amendments in this group relate to defining a foreign power for the purposes of its activity in the UK. The noble Baroness, Lady Jones, moved her Amendment 66A, which would ensure that journalists and civil society are not wrongly included. This debate could have spread over to the group we will discuss on Monday on the foreign influence registration scheme and how that affects businesses, universities and political parties. In a sense, we will revisit a lot of these issues. Nevertheless, noble Lords have made points that will bear repeating, because they can be repeated in that context.
The noble Lord, Lord Marks, tabled similar amendments to create exclusions in certain instances. Amendments 67 and 69 would expand the definition to include corporations working on the behalf of foreign Governments. It is worth reflecting on the Government’s previous inconsistent approach to Huawei in 5G networks, and their lack of understanding of the risks. I believe that this underlines a need for a more coherent strategy. Serious questions remain following the 2020 announcement that Huawei would be removed from UK 5G networks, which we believe was long overdue, about why it was given the go-ahead in the first place. The Huawei case was sadly illustrative of how, in the past decade, the Government have allowed our national security to become an afterthought, creating risks to it. We on this side of the House believe that the Government need to invest in homegrown alternatives to end our national dependence on high-risk vendors.
My noble friend Lady Hayter made a number of very interesting points about political parties, which were picked up by other noble Lords in the debate. I would be interested to hear the Minister’s answer to the points she raised.
The noble Lord, Lord Black, referred to the letter in the Times today to which he was a co-signatory. The noble Baroness, Lady Stowell, also spoke about the potential chilling effect of the Bill’s provisions as they are currently drafted. They both spoke about the importance of a public interest journalism.
The noble Lord, Lord Wallace, made a point that I think will be repeated on Monday but is well worth repeating. It is the problem of overreporting. That is a theme that has run through all the briefings which I have received and that I am sure all noble Lord have received. It a fear in the university sector, the business sector and political parties, and literally hundreds of NGOs are also concerned about this matter—but that is something that can be talked about on Monday, as I have just mentioned.
When the noble Lord, Lord Purvis, summed up, he put his finger on the main problem with this section of the Bill, which is defining the anomalies of political parties, whether they are in government or not, or are part of coalitions or are opposition parties, and the many sorts of relationships which all political parties have internationally and how that works with the points made by the noble Lord, Lord Black, about the importance of public interest journalism, and how that is a very international approach, often dealing with leaked information and illegal information, and how journalists are to be protected in pursuing that valuable work. So this is a complex area. I am sure the Minister will, as usual, be very careful in his answer, but I hope he retains an open mind, as he did on the previous group when we were considering issues raised in this Committee.

Lord Sharpe of Epsom: My Lords, I again thank all noble Lords who have participated in this debate. Amendment 66A seeks to exclude journalism and civil society activity from the foreign power condition unless the conduct is instigated by or is under the direction or control of a foreign power. I acknowledge the intention of the noble Baroness, Lady Jones of  Moulsecoomb, to protect legitimate activity from being criminalised under the Bill with this amendment. However, the Government do not believe that the Bill criminalises legitimate activity and, as such, it is our view that this amendment is unnecessary.
The Committee will be aware that the foreign power condition provides a single and consistent means by which a link between a person’s activities and a foreign state can be drawn. Meeting the foreign power condition is not in itself wrong. It becomes relevant when the other elements of the offences to which it applies are met. As such, the Government do not believe there is a risk to those who engage in legitimate acts, such as journalism or forms of civil society activity.
Turning to the specifics of the amendment, we know that those with hostile intent seek to hide their activities under the appearance of legitimacy, and this amendment could therefore create a gap in our ability to prosecute such individuals. This amendment would mean that an activity carried out with the financial or other assistance of, in collaboration with, or with the agreement of a foreign power would not meet the requirements of the foreign power condition. As a consequence, where a state threat actor posing as a journalist has been engaged in harmful activity which is an offence under the Bill, they would not commit an offence even if we could show that they were receiving specific funding in relation to that activity from a foreign power. This would produce an unwelcome effect whereby those seeking to cause harm to the UK could pose as journalists or members of civil society groups or operate through proxies in order to make it more difficult to be prosecuted.
The Government understand that journalists and those conducting civil society activity can be acting wholly legitimately when receiving funding from a foreign power or working in collaboration with it. However, the other requirements for offences to be committed mean that those legitimate acts would not be captured. In answer to my noble friend Lord Black, I can be clear that this Bill targets wrongful activity from states, not whistleblowing —but we will be coming back to whistleblowing later in today’s session. I also hope that those comments reassure my noble friends Lord Black and Lady Stowell and, of course, the noble Lord, Lord Faulks.
I now turn to Amendments 67 to 71 on the meaning of foreign power, which were tabled by the noble Lords, Lord Marks of Henley on Thames and Lord Purvis of Tweed. The noble Lords have tabled an amendment to remove from the definition a political party which is the governing political party of foreign Government. The inclusion of governing political parties addresses situations where there is a dominant political party or parties within a country to such an extent that it may be difficult to disentangle whether harmful activities are being carried out on the direction of the ruling party or the Government. We know all too well that states seeking to exert their influence or cause harm to the United Kingdom will do so through a number of different vectors, and we do not wish to create a gap in our legislation which state actors could exploit.

Lord Marks of Henley-on-Thames: How then, if you seek to attack political parties that are effectively Governments, do you correspondingly exclude political  parties that are not in any sense responsible for the activities of the Government, even though they may form a small part of such a Government? The point we made about coalitions is in point and illustrates one of the points we are concerned with, which is that, in a desire to encompass everything that ought to be encompassed, you pull into the net all kinds of fish that ought never to have been caught.

Lord Sharpe of Epsom: I of course understand where the noble Lord is coming from, but the point is that this relates to the activities of these political parties and those who are working for them. Therefore, I am not entirely convinced that it would be appropriate to exclude the smaller parties in, say, a coalition.
I was going to go on to explain why certain governing political parties in the Republic of Ireland have been carved out, in answer to the question asked by the noble Lord, Lord Pannick. A political party that is both the governing political party in the Republic of Ireland and a political party registered in Great Britain or Northern Ireland is excluded from the definition of a foreign power, as noted. This exclusion is included in recognition of the fact that there are political parties that contest elections in the Republic of Ireland and in the United Kingdom to ensure that the provisions in the Bill do not inadvertently impact cross-border politics.
A further amendment has been tabled seeking to add corporate or other entities.

Baroness Hayter of Kentish Town: Is the Minister moving off political parties? If so, he has not answered any of the questions that I posed, and I hope he is going to do so before he moves off political parties. The idea is that we are going to call in political parties—and only governing parties, although under Schedule 4 they are the ones that are excluded, not opposition ones—but other countries do not necessarily have a definition of political parties in the way that we do. In fact, until PPERA, in 1998 or whenever it was, I cannot remember, we did not have a definition of political parties or a register of them. So, in other countries that do not have them, how on earth are you going to know who is a political party?
Apart from that, there is the question I put about whether they are in opposition or in government, and what the answer is on America. If one is trying to get at agents acting on behalf of a Government, all you have to do—I used to be general-secretary of the Fabian Society—is call yourself a think tank rather than a political party, and then presumably you can do the activity. So, if this is a way of try to get at organisations that work on behalf of Governments, only calling them political parties, of which in many countries there are no definitions anyway, is, I have to say, somewhat the wrong approach. Will the Minister give me answers to the questions I posed in my contribution?

Lord Sharpe of Epsom: I thank the noble Baroness for that. She will forgive me if I do not get involved in what is the correct, or legitimate, Government of the United States. I do not think that is for me to opine.

Baroness Hayter of Kentish Town: It will be for the noble Lord or his successor to opine, because it is in the Bill. There is no secondary legislation attached  to it about what the definition will be. This is Pepper v Hart. What is going to be taken is the Minister’s words at the Dispatch Box. If the Minister is saying that he cannot define which is the governing party in America, how do we know who we can meet and who we have to register?

Lord Sharpe of Epsom: As regards the registering point, the noble Baroness is—as the noble Lord, Lord Ponsonby, suggested—perhaps straying into the FIRS situation, which we will discuss at considerable length on Monday. I think that will deal with a number of the questions the noble Baroness has posed with regard to registration and so on. Can we come back to that on Monday, please?
As regards opining as to the Government of the United States, I choose not to do so purely because it would potentially be a political can of worms, but I acknowledge the fact that obviously there is a President who comes from a different party from the majority party in one of the two Houses.

Baroness Hayter of Kentish Town: So there will be meetings that we can have now, and if—God forbid—Mr Trump wins, suddenly the parties with which we are allowed to talk will change because it is Mr Trump rather than Mr Biden. Is that really what the Minister is saying?

Lord Sharpe of Epsom: No, I do not believe that is particularly what I am saying. I suspect we will have to come back to this for precise definition purposes, and I am happy to commit to do so.
A further amendment has been tabled, seeking to add corporate or other entities to the foreign power definition. We believe this is unnecessary as it is already covered in the foreign power condition provision, which covers indirect links, under Clause 29(3). This explicitly provides that a person’s conduct could meet the foreign power condition if there is
“an indirect relationship through one or more companies”.
The legislation therefore covers cases where a person is receiving tasking through a company that is under the ownership, control or direction of a foreign power. It is vital that states are not able to circumvent the measures in the Bill by working through proxies to deliver harmful effects.
The noble Lord, Lord Ponsonby, asked specifically about state-owned companies and Huawei in particular. We have not included state-owned companies in the definition of a foreign power as these companies often have their own non-state objectives. Instead, the legislation captures circumstances where a person acts directly or indirectly
“for or on behalf of a foreign power”.
That includes cases where a person knows, or ought reasonably to know, that the activity they are conducting for a state-linked company is being carried out for or on behalf of the foreign power, or where they intend to benefit a foreign power. Offences may be committed by bodies corporate, including those established in other jurisdictions. In addition, the legislation provides that where an offence is committed by a company
“with the consent or connivance … or … due to any neglect”
of an officer of the company, that officer of the company may be guilty of the offence.
In answer to the noble Baroness, Lady Hayter, I have just mentioned that a number of the questions she raised and subjects she covered are more appropriately dealt with under the FIRS discussion we will have on Monday. That also applies to a number of the things raised by the noble Lord, Lord Wallace. As noble Lords know, that part of the Bill—Clauses 65 and 66 —was introduced late into the House of Commons, to which the noble Lord referred. I am sorry if the noble Lord, Lord Wallace, thinks I was frivolous as to the potential for right-wing threats to our national security. Just for the record, I am completely agnostic about from which end of the political spectrum threats are made to our national security.
Finally, noble Lords have tabled an amendment to exclude members of NATO and other nations, via regulations, from the definition of a foreign power. It is important to note that the National Security Bill focuses on harmful conduct undertaken by a person, not the foreign power they seek to benefit. Actively excluding certain states could create an unwelcome gap in the legislation, particularly given that we know that states sometimes look to act through proxies. These amendments, therefore, could lead to us being unable to take necessary and appropriate action against harmful activities. Noble Lords will wish to note the case of Daniel Houghton, the dual British-Dutch national who attempted to sell sensitive information to the Dutch intelligence services in 2010. Were NATO states to be excluded from the definition of a foreign power, cases like Daniel Houghton’s would not be captured by the offences and measures in the Bill.
For those reasons, the Government cannot accept these amendments and I ask noble Lords not to press them.

Baroness Jones of Moulsecoomb: My Lords, I am afraid I do not accept the Minister’s idea that these things cannot be criminalised, so I will bring my amendment back on Report. I thank noble Lords for contributing to my amendment, particularly the noble Lord, Lord Black, with his expertise—which goes way beyond mine. I ask the Minister for a meeting to discuss this, because it is quite a fundamental point and bears further discussion. In the meantime, I beg leave to withdraw.

Lord Wallace of Saltaire: My Lords, we need to come back to the question of a definition of a foreign power. The idea of a potential threat from Canada, Australia or the Netherlands, let alone the United States—which already has military forces in bases in this country—appears to be entirely disproportionate. We know there are serious threats from a number of hostile countries. That is what the Bill needs to focus on. If it spends a huge amount of time and demands a huge amount of effort from all those affected by it, reporting on the conversations they have had in Paris, Copenhagen, The Hague, et cetera, it will be less able to work out what is happening with Afghanistan and others—the real threats. That seems to be part of what is mistaken in the design of the Bill, and we need to come back to that before Report.
Amendment 66A withdrawn.
Clause 29 agreed.
House resumed. Committee to begin again not before 8.20 pm.

National Health Service Pension Schemes (Member Contributions etc.) (Amendment) (No. 3) Regulations 2022
 - Motion to Regret

Lord Davies of Brixton: Moved by Lord Davies of Brixton
That this House regrets that the measures proposed by His Majesty’s Government in the National Health Service Pension Schemes (Member Contributions etc.) (Amendment) (No. 3) Regulations 2022 (SI 2022/ 1028) are insufficient to address fully the problems with staff retention in the NHS arising from the NHS pension arrangements.
Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee

Lord Davies of Brixton: My Lords, to a certain extent the burden of this Motion is uncontestable; the Government themselves accept that the measures proposed are insufficient because they have put down some further changes that will come before us in due course. I look forward to a further debate. This is an important issue, and I welcome the opportunity for a discussion.
Yesterday, on the winter crisis Statement, the Minister said that
“we should be learning all lessons. I like to think that, three months into my role, I am learning some of those lessons.”—[Official Report, 10/1/23; col. 1316.]
I am pleased to provide the opportunity for the Minister to learn more about the impact that the pension tax rules—the lifetime allowance and the annual allowance—are having on the work that he is undertaking to get our NHS back into shape. I did not seek to intervene yesterday when the Minister made the Statement, as I knew we had today’s debate. Of course, the crisis is not the product of short-term problems but the result of 12 years of political choices—but we are not going to debate that again.
The taxation issues, however, are still highly relevant. It is no good promising extra beds and shorter waiting times if you do not have the staff to provide the care, and there is no doubt that the rules are having an adverse effect on staff retention at senior levels, as well as—possibly even more important—on the morale of the staff whom we depend on. We are all agreed: for example, the last Prime Minister promised to
“stem the exodus of doctors from the NHS”,
and the Prime Minister before that promised to fix the pension tax relief rules. The current Chancellor, albeit before he took up that role, called the situation a national scandal. He also tweeted on 4 August that, among the actions needed to get the NHS back on its feet, the Government should:
“Grant an immediate exemption for doctors to public sector pension rules which are currently forcing them to retire in their fifties in alarming numbers”.
Even the current Health and Social Care Secretary, Steve Barclay MP, has said that the NHS Pension Scheme
“is one of the best in the country, but it’s not working as it should for everyone”,
so I am pleased that the Minister is here and ready to learn lessons. The problem, as he might be the first to acknowledge, is that the real solutions are not in his hands or those of his department. The solutions lie in the hands of the Treasury, which sets the pension tax rules and effectively controls the rules of public service pension schemes. Of course, this is a general problem which I could speak at great length about, but given the crisis we face in the NHS it is right that in this debate we should focus on what can be done in this area for the NHS.
As I have said, my Motion is indisputable. These provisions were inadequate and we have further changes, which are currently the subject of discussion. The Secretary of State has said:
“We need a system where our most experienced clinicians don’t feel they have to reduce their workload or take early retirement because of financial worries”.
This suggests that he understands the problem but, unfortunately, the further proposals currently out for consultation tell us that he does not, and that what has been proposed so far is insufficient. This is where it starts to get technical and the current forum, where slides and spreadsheet presentations are out of order, is not really conducive to a full explanation. Possibly it might be useful to have a meeting, but let us have a go at outlining the issues.
There are a number of problems, not least the lifetime allowance, but I want to focus in this debate on two issues that arise from the annual allowance: the limit on how much extra pension National Health Service employees can accrue each year, tax free. If you exceed the limit, there is a penal tax rate involved on the portion of growth of a member’s pension rights in excess of a defined amount, currently £40,000. It is a penal rate because tax is levied on the money as it goes into the scheme and then again when it is paid out as benefits. Effectively, that is a tax rate on pensions savings of up to 70%. While I am not against high earners paying more in income tax, it still needs to be applied equitably and fairly, and certainly not when people are doing the right thing by providing themselves with an adequate pension.
The growth in pension savings during a tax year, which is limited by the annual allowance, is referred to as the pension input amount. This is the increase in the value of the individual’s pension rights, starting from an opening value immediately before the beginning of the tax year and going to the closing value at its end. It consists of two parts: the increase in the pension that they had previously accrued and the additional pension that they earned during the current year. If, after allowing for inflation, an individual’s pension input amount is more than the annual allowance of £40,000, the individual is liable to pay tax on the excess, so the clear intention is that the pension input amount should consider only growth in pension savings above inflation. There are two major problems with  how this works in practice. First, there is an index mismatch; secondly, there is the problem of negative pensions growth.
The mismatch is between the index used to increase the opening value of the PIA and that used to revalue the member’s actual benefits. For example, in the 2022-23 tax year, the September 2022 CPI of 10.1% is used to revalue the member’s pension. However, the increase in the CPI used to revalue the opening value of the PIA is based on the previous September’s increase of 3.1%. So while over a year there may have been no increase in the real value of a member’s accrued benefits, they will still have to pay tax—almost certainly at the rate of 40% or 45%—on 7% of the current value of their accrued pension. I hope people are following me there. The amount involved can be substantial, heading towards six figures in some cases.
The Government have acknowledged that there is a problem here and proposed a change. However, what they have proposed is administratively complex and requires changes to pension administration systems, as well as legislation. Scheme administrators are already faced with the considerable challenges of delivering the McCloud remedy, correcting historic age discrimination. It is clearly better to go back to the source of the problem and amend Section 235 of the Finance Act 2004.
The second point is the failure to do anything about the problem of what is called negative pension growth, where the value of a member’s accrued pension is actually falling in real terms. If the member has an accrued pension and its value increases by less than inflation, you get negative pension growth: at the end of the year, the pension is worth less in real terms that it was at its beginning. This problem is difficult to explain given the time available but the key point to understand is that most experienced clinicians, who we need to retain to solve the problems we face, have two pensions where the PIA is assessed separately for each scheme. They have a pre-Hutton reforms pension based on their final pay and a post-Hutton reforms pension based on their revalued average pay.
Without going into too much detail—maybe there is too much already—with current and expected pay increases of less than inflation, the value of the old pension they have accrued can actually reduce in real terms. It will go up in line with the pay increase but is tested against the PIA going up in line with inflation, which will be higher than their pay increase. In fact, over the year, that element of their pension will have fallen in real terms—and that is ignored for tax purposes. However, the value of the new pension that the member has accrued, plus their additional pension accrued during the year, will be a positive amount. In one scheme they have a negative amount, while in their more up-to-date scheme they have a positive amount which will be taxed at a penal rate, even though overall the amount of increase in the pension they have been paid by the National Health Service has not gone up by nearly as much, or might even have declined in total. As far as the member is concerned, it is all one pension, and it is difficult for them to understand why they are being taxed on a declining asset.
The Secretary of State and the department have provided an example of how their proposals will work. I have been involved in that game for long enough to know that, when employers provide a single example, it is rarely an accurate reflection of everything that is happening; there is always an element of cherry picking. That example does not tell us, first, that it is an exceptional case and, secondly, that it is looking only at one year’s figures. To the extent that it is possible to reverse-engineer the figures we have been given, it appears that, because negative pensions growth will be excluded in future years, the individual concerned will still have to pay substantial amounts in tax, even though the total value of the benefits is declining. The likely effect is that the senior clinician involved will stop doing waiting list initiative work to avoid the tapering which will massively increase the tax they pay, despite that additional work not being pensionable.
We have a real problem here for getting the NHS back on track. We need to retain senior staff, and, unless the Government accede particularly on the need to have an effective and efficient system for dealing with the index mismatch—and, especially, on taking into account negative pensions growth—we will continue to have those difficulties.

Baroness Altmann: My Lords, I congratulate the noble Lord, Lord Davies, on highlighting a really serious issue in terms of the workforce situation within the National Health Service. I commend him on his clarity and ability to explain an incredibly complicated situation. I also congratulate my noble friend and welcome him to his position. I know that he is in listening mode and that the Government really want to sort out the problem; it has been hanging over the National Health Service for a number of years.
Small changes have been made to try to address different parts of the problem, but we are left with a situation where, partly because of the legacy of unexpected tax bills that hit senior staff and lowered morale at points over the past three or four years, we currently face a new problem that did not exist before and which has added to the difficulties faced by NHS staff: inflation. The NHS Pension Scheme, as with other public sector pension schemes, is an excellent scheme; the benefits provided for the majority of members are generous and of extremely high value relative to the salaries of most of the workforce. More than 1 million members are in that scheme, and the Government, in their new regulations, have commendably sought to widen the membership of the NHS Pension Scheme. Again, I commend the recent consultation measures that have been put forward; for example, bringing in more primary care network staff so that they do not have to keep opting in but can be automatically included.
I also welcome the attempts to attract back some of the people who have retired early from the NHS or left it for a number of reasons over the past few years. Were they to come back under the old rules, they would face extra penalties; however, those penalties are being removed. I again offer my noble friend and the Government my full support on trying to get people to come back flexibly, take partial pensions and make new contributions and to remove the limits  on the number of hours worked—all of which is to be welcomed in allowing retired staff to rejoin the pension scheme.
There is also an attempt to address the inflation calculation problem, whereby the base for calculating the end-of-year inflation is being moved to 6 April so that it will take a base at a similar level of inflation to the previous year. However, that is a one-year fix, so it is not going to solve the long-term issue.
Given the cost to taxpayers of unfunded public sector pensions and, in my view, the right of public servants to expect good pensions, we need to recognise that there is a real problem for some groups of members for whom something which is supposed to be a brilliant workplace benefit has turned into a workplace penalty because of illogical tax rules. More senior and long-serving earners—and now even middle earners, not just the highest earners—are finding that their supposedly tax-free pension contributions are causing them to receive huge tax demands that can even exceed the extra earnings that they may make from taking on an extra shift or doing some overtime, so they are effectively paying to work for the NHS. That is not intentional; the rules in theory are having unintended consequences in practice. The tax system rules that the Treasury has devised are intended to limit the extra tax-exempt pensions so that taxpayers do not have uncapped, extra-large bills going forward, but, in practice, there is complexity, a lack of transparency and perhaps inappropriateness in applying rules that might work for defined contribution pension schemes to defined benefit pension schemes—as well as in trying to limit not only the amount of money going into the scheme each year but the amount built up over the long run. Surely, if you limit the amount that goes in on an annual basis, you should not need to punish people if they have a big pension at the end—is that not the point of building up pensions? I urge my noble friend perhaps to meet a group of interested Peers and representatives from the Treasury to try to work through how we can fix some of the illogical tax rules.
I have identified four elements of the pension scheme that are not working: the annual allowance itself; the tapered annual allowance, on which the Government have gone quite a long way to try to ensure that the increased level at which that bites in the NHS has taken some of the sting out of what was a problem lower down the scale before; the lifetime allowance; and the 20-times pension calculation, regardless of whether you take early retirement. The latter means that it will be advisable for many people to retire in their 50s—as soon as they can—if they are just coming up to the lifetime allowance, because the 20-times calculation will be applied to the pension at that stage, rather than to stay on, work longer, wait until they have a bigger pension and slip over the limit.
There is the inflation calculation, as the noble Lord, Lord Davies, has mentioned, the index mismatch and the failure to have any offset for negative growth. Again, if we were to be able to change Sections 234 and 235 of the Finance Act 2004 to better allow the total pension calculation that accrues above inflation, that would at least address some of this issue.
A final element that I would like to highlight is that there is the possibility for members who face tax charges to have those charges paid by the pension  scheme. It is called “scheme pays”, and effectively it means that you get a lower pension later on because the pension scheme has paid your tax bill today. But what we need to do is to take away the punitive interest rate charged for the calculation made for the “scheme pays” amount. Right now a member is charged CPI plus 2.4%, effectively 12.5% to borrow money from their pension scheme, meaning that they get a lower pension later on.
All these things are complicated, but each of them needs addressing if we are actually going to put a stop to the situation that we have ended up in—which is that the pension rules that were meant to be, and in most cases are, a really good benefit for staff, have ended up incentivising people not to work. That is obviously counterproductive from everybody’s perspective, certainly at a time when we need to attract and retain staff—and one might argue that the most senior and more experienced staff are the ones we least want to entice to leave. That is what is happening in the NHS today.
I urge my noble friend to look at the interaction between the pension schemes, the 1995 scheme and the post-Hutton reform schemes. One particular question that arises—and I wonder whether my noble friend could write to us if he cannot answer it today—is that I am conscious that the McCloud remedy is coming in, so people will be put back into the situation that they would have been in if they had been in the final salary scheme all the way through from 2015, as we go forward. What will happen to the tax bills that have already been levied, or any other bills that may be associated with that? Will that just be ignored, or will we have another complex series of tax negotiations that the Treasury needs to sort out?
I commend the Government on what they have done so far, but I also regret that there is not enough movement or radical change to allow the NHS Pension Scheme to stop discouraging senior and valuable staff from leaving and stop interfering with and undermining the morale of the staff that we have.

Baroness Masham of Ilton: I thank the noble Lord, Lord Davies of Brixton, for this regret Motion. This is an important matter, because we are losing some of our experienced consultant doctors because of this pension scheme system. We cannot afford to lose these doctors early—they are so valuable. Surely this is something that the Government can put right. This is urgent, and I hope that the Minister will have some good news tonight. If not, people will continue to be worried.

Lord Allan of Hallam: My Lords, regrettably I do not have an interest to declare in respect of the NHS Pension Scheme. I say regrettably because I was an NHS employee during much of my 20s but foolishly opted out of the pension scheme. Older me would have words to say to younger me about the lack of foresight in that decision, because the NHS pension was and is an excellent support in retirement, as the noble Baroness, Lady Altmann, has pointed out. If only I had had someone like her to advise me back then, I would be in a better position today.
Apart from that reminder of personal grief, I am grateful to the noble Lord, Lord Davies of Brixton, for enabling us to have this debate today, as it allows us to return to a key topic that we rightly discuss regularly in this House—the issue of staff shortages in the health and social care sector. He and the noble Baroness, Lady Altmann, have described some of the really quite profound structural challenges related to NHS pensions and taxation, and I hope that the Minister will agree to look at them in some detail.
On the narrower subject of the regulations themselves, the response to the consultation on this instrument is enlightening in describing the nature of the staffing pressures that the NHS faces, which brought around the original changes made in the Covid legislation that have then been prolonged in a series of statutory instruments, and especially in describing those that relate to staff sickness absence rates. I note that the consultation response was written last autumn but accurately predicted the fact that those staff sickness absence rates would continue through the winter. If anything, they have been worse than anyone anticipated, through the combination of Covid and flu. That makes the case for us not disincentivising experienced staff who are past retirement age from returning to help us out at a time of national crisis. It is of special note that, in this consultation, 98% of respondents said that, yes, this should go ahead and we should continue to offer some relief to those who are coming back into work, with only 2% against. That is quite a majority for any consultation.
If the consultees had any criticism, it was that the easements did not go far enough. I note that the Government have agreed to remove the 16-hour rule permanently from 1 April this year, and I hope that the Minister will confirm that this is the case. It was the pension scheme board itself that said that there was no rationale for requiring people who agreed to work past retirement to stick to a 16-hour limit.
The response also goes into some detail about the position of special class status members who can retire at 55, and what happens if they return to work before the age of 60. It included a graph that showed how much a nurse in this category could work before abatement applied. I understand that the word “abatement” in this case means that there is a limit to the number of additional hours that a nurse could work before losing, pound for pound, some of their pension entitlement. In other words, if they work past that amount of time, effectively they are working for free. The Minister may correct me if I have misunderstood, but the chart implied that there would be a straightforward loss.
The chart tells us that the most experienced nurses, those with 35 years of pension entitlement, would be able to work around 0.5 of a full-time equivalent before the pension ceiling kicked in. The Government in their consultation, because they were not lifting the abatement permanently, put a glass-half-full spin on it, saying, “Look, these people can come back and work half time”. But of course there is a glass-half-empty angle on it as well, which is that we are potentially losing half the time that those experienced staff could give to us if they did not feel that, by working those extra hours, they would lose out on their pension entitlement. I note that the abatement for this group  has been extended to 2025, acknowledging that concern, but that there is still no permanent solution. Again, I hope that the Minister today has some ideas for how we may go further and ensure that the NHS can persuade retired staff of all classes to put in as many hours as they feel fit to do. We do not want to be in the position whereby someone is willing to work more but, purely for financial reasons, feels unable to do so.
I am sure that we will return to the theme of the impact of NHS Pension Scheme rules on staffing levels over the coming months. As the noble Baroness, Lady Altmann, pointed out, it is clear that there are unforeseen and unwelcome consequences of some of these rules, which I suspect is because they were crafted in a different climate for NHS staffing, at a time when people would retire and plenty more people were coming in. Today we are in quite a different situation where, frankly, we are desperate for those people who can still work, who are at retirement age, to postpone in many cases well-earned retirements to come back and assist us. In that climate, it is essential that the Government commit to revising rules where that would make a material difference to staffing levels and therefore to the health of the nation.

Baroness Merron: My Lords, I thank my noble friend Lord Davies for tabling this regret Motion and for comprehensively setting out the issues before us this evening. As the noble Baroness, Lady Altmann, said, this is a real problem because we see workplace penalties incentivising staff not to work, which cannot be a state of affairs that is allowed to continue.
I will start by making a general point of context. I have great concerns at how many regret Motions concerning regulations produced by the Department for Health and Social Care have been tabled in recent months, with more to come. Is this a concern that the Minister also shares? If so, I wonder whether he has a view on what action needs to be taken within the department in order to stem this flow. I suggest to your Lordships’ House that perhaps the reasons for justified dissatisfaction with a number of regulations that are being brought forward have roots in both procedure and policy that are falling short. I will return to that point later. I hope that the Minister will act swiftly and systematically to deal with this continuing problem.
As we heard in contributions from across the House, inadequate numbers of staff underscore the crisis in the National Health Service, which is creating a situation of irrevocable damage being done to the lives of people who experience record delays across the whole of the system. We have a crisis of failure in getting and keeping a workforce in place to provide the services that we need. This has not just happened by accident. It is evidenced as predating the pandemic and it is the result of nearly 13 years of very particular choices that have been made by this Government.
In 2021 alone, 2,000 dentists and over 7,000 nurses quit the NHS. There are more than 46,000 empty nursing posts across hospitals, mental health, community care and other services, which means that around one in 10 nursing roles is unfilled across the service overall. That is the context in which we are discussing this  regret Motion. As noble Lords on all sides of the House have asked repeatedly—as the noble Lord, Lord Allan, rightly reminded us, and as I and other noble Lords asked on yesterday’s Statement—where is the comprehensive and detailed workforce plan to retain, recruit and train the doctors, nurses and other health professionals whom the NHS so desperately needs? Will this plan take account of NHS pension arrangements?
With specific reference to NHS pensions, we have long been calling for the Government to sort them out and to remove the deterrents in the system to NHS staff staying in post or returning to work. This includes, for example, the cap on doctors’ pensions as, under the current rules, many experienced doctors are deterred from working later into their career because they are unable to opt out of paying into their NHS pension even if they have reached the cap. The result is that GPs are taking early retirement, which they would not have done otherwise, as the noble Baroness, Lady Masham, referred to.
We also know that record numbers of GPs are indicating that they will retire or leave the profession, with burnout and low morale at an all-time high. Can the Minister say how the numbers will stack up, when 4,700 GPs have been cut over the past decade and the long-promised 6,000 GPs are not on course to be delivered? How will the current pension arrangements assist in keeping GPs from wanting to retire and leave the profession? What action will be taken?
I turn to the specific comments of the Secondary Legislation Scrutiny Committee that form the basis of this regret Motion. I understand why my noble friend Lord Davies has seen fit to table this Motion. The committee’s report on this statutory instrument laments the short-term approach taken by the Government. The SLSC has drawn these regulations to the special attention of the House because
“some of the extensions proposed are quite short term and may not give re-employed retired staff or their employers the certainty first to encourage and then to retain staff to deal with the current NHS backlogs.”
With this in mind, I was surprised that a full impact assessment had not been produced. The Explanatory Memorandum says that the reason is that
“no, or no significant, impact”
is foreseen. In light of the criticisms by the SLSC, does the Minister feel that it was the right course of action to not produce an impact assessment? If so, I would be interested to know what assessment the Minister has made of the contribution of these regulations to dealing with the NHS workforce crisis. As we have heard this evening and on many other occasions, one of the many contributors will be getting in place the right terms and conditions—including pensions—if the NHS is to have the workforce that it and we need. I look forward to the Minister’s response.

Lord Markham: My Lords, I thank noble Lords, particularly the noble Lord, Lord Davies, for bringing this debate today and  for reminding me, quite rightly, about learning lessons. I must admit that I have found learning the health brief—which I still continue to try to learn—pretty challenging. Learning the intricacies of tax and pension matters is another dimension that I was not quite expecting in all this—but I will try to repeat what I have learned so far.
The main thing, and a serious point behind the comments from both the noble Lord, Lord Davies, and my noble friend Lady Altmann, is that, to me, it is a sign of the Lords working well that we have this sort of expertise at our disposal. I said in my maiden speech that I wanted to be a different kind of Minister. We have clear expertise tonight, with people all wanting the same thing: to retain doctors, as the noble Baronesses, Lady Masham and Lady Merron, said; and to address the staff shortages that we have, as the noble Lord, Lord Allan, said. These are things that we have to address, and pensions should definitely be part of that workforce analysis.
I would therefore absolutely like to offer that round table that we have talked about. Again, something that I said in my maiden speech was that I have always found it quite strange that we talk across a Chamber; surely, a more productive way is to talk around a table with a cup of tea or coffee and have an exchange of views. So I would definitely like to offer that opportunity to the noble Lords who are interested, so that we can learn from them. I again thank the noble Lord, Lord Davies, for bringing this up, so that we have that opportunity to learn and to try to get it right.
I will tell noble Lords what I think is the premise of what we are trying to do and I will then read my speech, which will probably answer some of the detailed points. I will also endeavour to write with a proper detailed response. As we all have said, we know that what we need to fix is the fact that doctors are voting with their feet. That clearly is the problem and, if we do not try to sort it out, it will just carry on. I am not going to pretend that we have fixed that to date, but we do all understand the problem and I know enough about this subject to understand that a marginal rate of tax of 70% is a clear disincentive to work in that situation.
I have tried to understand ways to address this. The problem is that we know that if we try to address this by changing the whole tax system, it becomes very expensive to change the pension rules for everyone. Understandably, the Treasury has a difficulty about changing the rules for one sector of society and the challenge that might result: the cost of trying to solve the doctors’ situation by changing all the tax rules would be incredibly expensive. The judges’ situation is often used. I believe that the way they get round it is by employers effectively paying them the gross amount, to make sure that they get the same net amount as a result. I appreciate that we would then be paying people who are some of the best-paid workers in the NHS an even larger sum, which, I have to say, sits uncomfortably with me personally, particularly when we are having the understandable pay conversations, disputes and strike actions at the moment.
What we are trying to do in all of this—we are not there yet—is at least get to a situation whereby if it is penal for someone to be receiving this as part of their  pension, they can receive it as part of their pay instead, at which point they will be paying the marginal rate of tax, be it 40% or 45%. There will be flexibility and choice: I can either have it in my pension pot, or my personal circumstances mean that if I trip over one of the many different allowances rules and it starts to penalise me and I am disincentivised to work, I can at least get it back in my salary, my pay packet, and get it back that way round instead. That is the principle of what we are trying to do in all of this, so when we come to our round table, that is the approach I plan to bring.
On the statutory instrument itself and the regret Motion, I take on board the point made by the noble Baroness, Lady Merron, and I will take that away. I believe that in this circumstance, the regret Motion is less about this per se—because if we were to vote this down, it would make the problem even worse, because all it is doing is extending the situation to March 2023—and really saying that we do not think it goes far enough. That is slightly different; correct me if I am wrong, but I do not believe noble Lords are actually saying here that they disagree with the SI per se and want it to fall. So, it is not a regret Motion, but we are using this as an opportunity, absolutely in the right way because it means that we brought it to the Floor and had a debate, we got a proper conversation and dialogue and a round table to try to fix the problem. This SI in itself helps but definitely does not fix the whole problem.
So that is the direction we are trying to come from. The proposals I have had the officials explain to me are trying to increase flexibility so that people can dip in and dip out, they can step out completely for a while and then start working again if that suits their lifestyle, and restart the clock in terms of their pension and everything else like that. They can take some of their pension and come back to it afterwards. They are trying to solve those sorts of problems, obviously removing the hour cap and trying to solve things about the abatement hours, all on the principle that we know it is a very valuable pension scheme that many of us wish we had the opportunity to be part of, but it is not quite working properly in the way we need it to. The CPI disconnect, as I understand it, is one of the clear issues there. I understand the issues around what the scheme pays: I must admit it was an education for me to hear that, if we are talking about interest rates of 12.5%, clearly that needs to be understood further as well.
I hope noble Lords can see from my response tonight that I very much appreciate the noble Lord, Lord Davies, tabling his Motion because it allows us to discuss this properly. At the department, we know that this is an issue we need to face, because otherwise doctors will continue to vote with their feet and it can be only to our detriment and the health service’s detriment if we do not fix it. With that in mind, I hope I have picked up most of the questions and, as I say, I will write in detail and offer that round table. I hope noble Lords understand why I do not support the regret Motion and I hope, on the basis of the conversation we have had tonight, that while I very much appreciate that this has been brought for us to talk about and set up the round table, the noble Lord will feel able to withdraw.

Lord Davies of Brixton: My Lords, I thank the Minister for his response. I am sure everyone will be relieved that I am not going to push the Motion to a vote and say that my main intention this evening was to ensure that we took this opportunity for the relevant department and the Minister to understand the issues involved. The solution has to be one which is acceptable to the doctors. It goes without saying, really, that we can discuss this as much as we like, but it is the doctors who have to say, ultimately, “Yes, this solves the problem; we are not being forced to retire.” In that light, I beg leave to withdraw.
Motion withdrawn.

National Security Bill
 - Committee (3rd Day) (Continued)

Clause 30: Meaning of “foreign power”
  

Amendments 67 to 71 not moved.
Clause 30 agreed.

  
Clause 31: Foreign power threat activity and involvement in that activity

Amendment 72

Lord Marks of Henley-on-Thames: Moved by Lord Marks of Henley-on-Thames
72: Clause 31, page 23, line 3, leave out paragraph (c)Member’s explanatory statementThis amendment is recommended by the JCHR and would narrow the definition of foreign power threat activity to remove giving support and assistance (including support and assistance unrelated to espionage activity) to a person known or believed to be involved in offences under the Bill (but would retain conduct which facilitates or is intended to facilitate such offending).

Lord Marks of Henley-on-Thames: My Lords, in the absence of my noble friend Lady Ludford, I am moving Amendment 72. It is a short amendment and I shall speak briefly. Clause 31 deals with foreign power threat activity, which is relevant to a constable’s powers of arrest without warrant and detention powers under Clause 35. Indeed, such activity acts as a threshold for the exercise of those powers. Foreign power threat activity also acts as a threshold for the powers of search, disclosure orders, customer information orders and account monitoring orders by virtue of Clauses 21(b), 22 to 24 and Schedules 2 to 5 incorporated in the Bill by those clauses.
Foreign power threat activity is defined in paragraphs (a), (b) and (c) of Clause 31(1). I am afraid I have to read them:
“In this Part references to foreign power threat activity and to involvement in foreign power threat activity are to one or more of the following … (a) the commission, preparation or instigation of acts or threats within subsection (3)”—
that is, the major offences under the first part of this Bill—
“(b) conduct which facilitates (or is intended to facilitate) conduct falling within paragraph (a)”,
which I have just read. Finally, our amendment is directed to paragraph (c), which we say should be removed from Bill and which refers to
“conduct which gives support or assistance to individuals who are known or believed by the individual concerned to be involved in conduct falling within paragraph (a).”
The reasons paragraph (c) should be removed are twofold. First, it makes no sense. Secondly, even if it did, the conduct described is far too vague and remote from the acts concerned in the offences described to make any sense at all or to make it worth retaining.
It makes no sense because of the double use of the word “individuals”. The individuals are the receivers of the support or assistance, and they are
“known or believed by the individual concerned to be involved in conduct”.
Well, the individual concerned who is the receiver of the assistance knows perfectly well what conduct he or she is involved in. That nonsense aside—a drafting misstep at best—even if the second use of the word “individual” were to mean the giver of the support or assistance, as it might have done, rather than the receiver of the support or assistance, which makes it a nonsense, we say it is still too remote and vague.
It is too remote because the conduct is so far removed from the support or assistance as to make it effectively impossible to prosecute. It is too vague because there is absolutely no indication of what support or assistance to the relevant individuals is the mischief at which this is aimed. Is it simply supplying a meal or housing, or support or assistance in connection with the conduct? There is nothing effectively to connect the support or assistance to the conduct at which this provision is aimed. This is an important provision because it is the threshold to the exercise of very wide-ranging powers in the clause and the rest of the schedules, so we say it would be far better without paragraph (c). I beg to move.

Lord Ponsonby of Shulbrede: My Lords, this is another JCHR-recommended amendment, ably spoken to by the noble Lord, Lord Marks. Its effect is to narrow the definition of foreign power threat activity by removing giving support and assistance to a person involved in offences under the Bill. The reason for the amendment is that the support and assistance become illegal if unrelated to espionage activity. As the noble Lord explained, its effect does not alter the lines which include facilitating such offending under subsections (1)(a) and (1)(b) of the relevant clause. His objection to paragraph (c) was that it does not make sense and is too vague. I take on board the legal points and his examination of the English in that paragraph, but the real point of this is to provoke a debate and discussion, to narrow the definition and encourage the Minister to explain more fully what is meant by the definitions set down in the Bill.

Lord Sharpe of Epsom: My Lords, Amendment 72 seeks to narrow the definition of foreign power threat activity by removing the conduct of those who give support or assistance to individuals, as has been noted.
The definition of foreign power threat activity is a vital part of the Bill, ensuring that the police have the powers they need in support of investigations into state threats offences. It is important that foreign power threat activity has sufficient breadth to allow our law enforcement and intelligence agencies to act where a threat is posed to the safety of the United Kingdom.
There will inevitably be overlap between facilitating on the one hand and assisting or supporting individuals on the other to carry out certain harmful activity under the Bill. However, it is important to retain both elements as they serve distinct purposes. We do not wish to create a gap in the legislation that prevents us being able to act against persons who assist individuals involved in harmful activity, and therefore we cannot accept this amendment.
Both noble Lords implied that it is casting the net too broadly to say that it is not necessary to identify a specific offence or act. However, given the harm that can arise from state threats activity, it is right that the Government can act to disrupt individuals during the early stages of their conduct. Therefore, it will not always be possible to determine the end goal of their conduct. Indeed, in some cases an individual may not have even decided the precise outcome they seek to bring about but, none the less, they have an intention to engage in state threats activity. We therefore want to ensure that the provisions are robust enough to catch criminals in these cases. Waiting until we have a full picture of the act they wish to commit could mean that we have to wait until the act itself is committed.
Additionally, I reassure the House that the reference to
“conduct which gives support or assistance”
under Clause 31(1)(c) relates specifically to conduct falling under Clause 31(1)(a), as is made explicit through the reference to paragraph (a). The Government’s view is that it is implicit that the conduct in question must be support in relation to acts or threats under Clause 31(1)(a), rather than support in relation to any unrelated activity. Thus, the provision does not risk bringing activity wholly unrelated to state threats activity into scope.

Lord Beith: Can the Minister explain that? That is the only thing I can see that is covered by paragraph (c) which is not covered by paragraph (b)—the provision of support or assistance in matters which are nothing to do with the likelihood of the individual being involved in conduct falling within paragraph (a). The Minister has stated that paragraph (c) does not have the effect of proscribing conduct which has nothing to do with the provisions in paragraphs (a) and (b), but I do not know on what he bases that confidence.

Lord Sharpe of Epsom: I base that confidence on the explicit reference to Clause 31(1)(a) in Clause 31(1)(c). With that, I ask the noble Lord to withdraw the amendment.

Lord Marks of Henley-on-Thames: I will withdraw it, but only on the basis that the Minister will consider this a little more carefully. As I have said, at the  moment the clause seems to me unsatisfactory, and paragraph (c) ought to go. That would not damage the overall meaning of the clause at all, and I hope that the Minister will reconsider that before Report. With that, I beg leave to withdraw the amendment.
Amendment 72 withdrawn.
Clause 31 agreed.
Clauses 32 and 33 agreed.

  
Clause 34: Offences committed outside the United Kingdom

Amendment 73

Lord Sharpe of Epsom: Moved by Lord Sharpe of Epsom
73: Clause 34, page 25, line 20, leave out from “(1)” to end of line 21 and insert “is subject to sections 3(6) and 15(6) (commission of offences under sections 3 and 15 by conduct outside the United Kingdom).”Member's explanatory statementThis amendment provides that Clause 34(1) is subject to specific provisions in Clauses 3 and 15 about when conduct taking place outside the UK can constitute an offence under those Clauses.
Amendment 73 agreed.
Clause 34, as amended, agreed.
Clause 35 agreed.

  
Clause 36: Power to exclude the public from proceedings

Amendment 74

Lord Marks of Henley-on-Thames: Moved by Lord Marks of Henley-on-Thames
74: Clause 36, page 26, line 5, leave out “in the interests of national security” and insert “for the administration of justice, having regard to the risk to national security”Member's explanatory statementThis amendment is based on a recommendation from the JCHR. It ensures this Clause better complies with the right to a fair trial and the administration of justice.

Lord Marks of Henley-on-Thames: My Lords, I move Amendment 74 on behalf of my noble friend Lady Ludford. It is a very simple amendment which relates to Clause 36 and the power to exclude the public from proceedings. At the moment, the clause reads:
“If it is necessary in the interests of national security, a court may exclude the public from … any part of proceedings … under this Part, or … any part of proceedings relating to section 69A of the Sentencing Act 2020”,
which relates to the aggravating factors in sentencing so that we are concerned only with criminal proceedings under the Bill. The JCHR has recommended that the interests of justice take primacy over the interests of national security by substituting
“in the interests of national security”
with
“for the administration of justice, having regard to the risk to national security”.
The justification for that is that, when one is considering the exclusion of the public—which the JCHR has recognised as being of great importance—the interests of justice should take primacy. Of course, if the interests of national security are in conflict with what might normally be seen as the interests of justice, it is likely that the interests of justice will be served by giving way to the interests of national security. However, it is entirely wrong that the interests of national security should be the only interests mentioned in Clause 36, and this was the view taken by the JCHR—that the interests of justice should be mentioned first.
May I say a word or two about the Government’s approach to the recommendations of the Joint Committee on Human Rights? We sometimes feel on this side of the House—and I suspect in a great many quarters—that the recommendations of this objective, well-informed and impartial committee, which is appointed to consider the compliance of proposed legislation with human rights law and principles of human rights, is given far too little shrift by government. We would be very pleased to see a change in that approach, so that recommendations which are very carefully drawn up and researched, and usually in very modest terms, are properly respected. There is a fear that they are routinely disrespected on the basis that the Joint Committee is seen as an arm of the so-called human rights lobby, and treated with something like the Rice-Davies approach of, “Well, they would say that, wouldn’t they?”
That is frankly inappropriate. It is a criticism that is being felt more and more strongly and one that is surprising in light of the fact that many on the Government’s side of this House and the other place are broadly opposed to the continuation of our adherence to all the points of the European Convention on Human Rights. They justify that opposition by reference to the view that the common law and Parliament will always be there to defend human rights, but if the Joint Committee’s recommendations are given such short shrift, there can be little confidence in that assurance.
I accept that that is a digression, but it is an important digression, because my noble friend Lady Ludford’s amendments are directed to the recommendations of the Joint Committee on Human Rights and it is something I hope Ministers will bear in mind. I beg to move.

Lord Ponsonby of Shulbrede: My Lords, I was not planning to speak on this fairly narrow amendment. The noble Lord, Lord Marks, made all the points relative to the amendment itself. However, it is worth just endorsing his closing comments about the view of the Opposition and Liberal Democrat Benches that the Government are paying too little attention to the recommendations of the JCHR. It appears to be a hurdle to overcome to get over those recommendations. This is a good example; many of the recommendations made are very minor. I just wanted to endorse the point the noble Lord made about the importance of this committee’s work.

Lord Murray of Blidworth: I thank the noble Lords, Lord Marks and Lord Ponsonby, for  their remarks. Turning first to the subsidiary point in respect of the importance of the reports of the JCHR, I can certainly assure all in the House that the JCHR reports are taken very seriously by the Government and all the recommendations are appropriately considered. I can say that, as a human rights lawyer myself, I fully appreciate the importance of the human rights considerations and the very valuable work done by the committee. I hope my remarks go some way to assuage the concerns that were outlined.
I turn now to the substantive amendment tabled by the noble Baroness, Lady Ludford. This clause replaces Section 8(4) of the Official Secrets Act 1920 and in so doing makes it more explicit that the exclusion of the public from proceedings must be necessary in the interests of national security. The Government consider that the approach taken in the drafting is appropriate given the highly sensitive nature of the material that may be required to be considered during court proceedings in relation to offences under the Bill. It is important to note that the decision to exclude the public from proceedings is taken by the court on application by the Executive, who are well placed to set out the risk to the courts. We consider that the judiciary is already well placed to assess the impact of any such decision on the administration of justice.
The words that this amendment seeks to add are, with respect, unnecessary. In England and Wales, for example, the Criminal Procedure Rules 2020 would apply in such proceedings which already have as their overriding objective that criminal cases are dealt with justly. Therefore, those rules require a court to have regard to the importance of dealing with criminal cases in public and the overriding interests of the administration of justice when determining whether to exclude the public from any part of proceedings. It is clearly right that this clause notes and provides the court with a clear basis upon which to exclude the public on grounds of national security, and that is all that this clause does. For those reasons, the Government cannot therefore accept the proposed amendment and I therefore invite the noble Lord to withdraw it.

Lord Marks of Henley-on-Thames: My Lords, I shall look carefully at the Minister’s response. For the time being I will certainly seek leave to withdraw the amendment. There may be room for further discussion—there may not. I accept that the overriding objective applies to criminal cases and to dealing with cases justly, but as regards whether it is not sensible that that should take primacy by a special mention in the Bill I am unconvinced at the moment. However, I will read what the noble Lord had to say. I therefore beg leave to withdraw the amendment.
Amendment 74 withdrawn.
Clause 36 agreed.

Lord Davies of Gower: My Lords, I propose that the Committee adjourn for 10 minutes until 9 pm to accommodate a technical issue.
Sitting suspended.

Amendment 75

Lord Marks of Henley-on-Thames: Moved by Lord Marks of Henley-on-Thames
75: After Clause 36, insert the following new Clause—“Public interest defence(1) A person subject to proceedings for any offence under sections 1 to 5 of this Act may raise as a defence that the person reasonably believed the conduct alleged to constitute the offence was carried out in the public interest.(2) Where a defence under subsection (1) is raised, it is for the prosecution to prove beyond reasonable doubt that the conduct alleged was not in the public interest.(3) In determining whether such conduct was in the public interest the court must have regard to—(a) the nature of the alleged conduct;(b) the harm caused by the alleged conduct;(c) whether the manner in which the person engaged in the alleged conduct was in the public interest;(d) whether the person engaged in the alleged conduct in good faith;(e) whether the person engaged in the alleged conduct for personal gain;(f) the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised;(g) any other relevant feature of the alleged conduct.”Member's explanatory statementThis amendment provides for a public interest defence to the offences under Clauses 1 to 5 of the Bill.

Lord Marks of Henley-on-Thames: My Lords, I thank the Committee for its indulgence in allowing a 10-minute break. The technical issue involved was entirely mine. I am tempted to say that there was a reasonable defence. It may not have been a public interest defence and I certainly cannot describe it as lawful justification, but nevertheless—

Lord Coaker: A serious disruption?

Lord Marks of Henley-on-Thames: Yes, it was possibly a serious disruption.
We have all received a very large number of briefings calling for a public interest defence, and none of them has suggested that such a defence is a bad idea or that it would imperil national security. I record our thanks to all the organisations which have sent us these briefings, including the BBC, the NUJ, Index on Censorship, openDemocracy, Guardian News & Media Limited and Mishcon de Reya, among many others. The briefings have concentrated largely on the threat to investigative journalism posed by the criminal provisions in the Bill. We dwelled on these at Second Reading, in the first two days in Committee and, to some extent, earlier today, so I will not go into detail. Suffice it to say that the threat to investigative journalism of criminalisation and the accompanying very long sentences is real and chilling—chilling in that the threat will have a deterrent effect on investigative journalism and in that it represents a real and frightening, and not merely theoretical, threat to open democracy.
It seems to be generally agreed that these provisions risk breaching Article 10 of the ECHR, on freedom of  expression, a concern that was expressed by the Joint Committee on Human Rights in its report on the Bill. The committee said, at paragraph 172:
“There seems to be a certain level of consensus that a whistleblowing or public interest defence is needed”.
It is also significant that a number of other countries, including our Five Eyes partners Canada, Australia and New Zealand, have some form of public interest defence to charges under similar legislation. However, it is not exclusively investigative journalism or even campaigning that is under threat. Those who expose wrongdoing by public servants or whistleblowing employees are equally at risk and may be equally deserving of an acquittal for an offence under this Bill after deploying a public interest defence.
It is for that reason that the public interest defence in our Amendment 75, in my name and that of my noble friend Lord Purvis of Tweed, goes further than protecting journalists alone. In so doing, it is close to the Law Commission’s recommendation in its 2000 paper, Protection of Official Data, which recommended that there should be a statutory public interest defence to unauthorised disclosure offences which should be available to anyone, civilians as well as journalists.
Therefore, our amendment would apply to all prosecutions for offences under Clauses 1 to 5 of the Bill, not just unauthorised disclosure offences, with which the Law Commission was concerned, but we regard that as right. Disclosure of restricted material is just as capable of being in the public interest as it is of assisting a friendly country’s intelligence service to apprehend or expose wrongdoing, as is entering a prohibited place to photograph or record corrupt transactions involving public servants. All can give rise to prosecution under the Act, and in each case there ought to be a public interest defence.
The defence we advocate is based on reasonable belief, so it relies on a test that is, in part, subjective—“Did the defendant believe their conduct was in the public interest?”—and, in part, objective: “Was that belief reasonable?” Juries are well used to applying that type of test and I suggest it is the appropriate one. By contrast, a wholly objective test of whether or not conduct was in fact in the public interest would impose a burden on juries to make what is essentially a political judgment, no doubt on the basis of conflicting evidence, expert and factual. That would not be the best test of the criminality of a defendant.
We have also maintained the principle that, once the defence is raised, it is for the prosecution to rebut it to the criminal standard of proof. That is the way our criminal law responds to a number of defences, reasonable self-defence being one such. We suggest it is the appropriate response. It would perhaps be different if we were concerned here with unauthorised disclosure by a member of the security or defence services who was bound by an agreed and binding confidentiality requirement. However, we are legislating here for criminal charges against private citizens, who, I suggest, are entitled to the benefits of the usual protections inherent in our criminal law.
In applying the test we advocate, juries would have to consider a number of factors set out in proposed new subsection (3) of the amendment. In formulating  them, we have relied loosely, but not exclusively, on the factors mentioned in the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996 for the protection of whistleblowers. These factors are designed to steer juries towards a balance between confidentiality and the public interest in disclosure. But we do not argue that these are in final form; at this stage, they are designed to give shape to what we would like to see in a public interest defence.
I repeat what I said the other day in Committee: there is no genuine democratic protection in the requirement that the Attorney-General’s consent should be obtained for a prosecution to be brought. That is a welcome safeguard, but its point is to avoid unnecessary and unmeritorious prosecutions. What is needed for the determination of guilt or innocence on a public interest defence is a trial before a jury, where the defendant has a fair chance to put their case that they reasonably believe that the conduct of which they are accused and which is said to be criminal was in the public interest.
I am grateful to the noble Lord, Lord Coaker, for his amendment but, unlike him though it may be, we say it goes nothing like far enough. We need a defence when the Bill becomes law, not merely an assessment of its possible merits. I note that, in the other place, the amendment of Kevan Jones MP, the Labour Member for Durham and a member of the Intelligence and Security Committee, was nothing like as diffident as that proposed by the noble Lord, Lord Coaker. I also note that Tom Tugendhat, for the Government, promised to engage further with the Opposition on this issue. I sincerely hope that the Minister gives a similar promise to consider the public interest defence, not just because of what we say here but because of the wide interest and concern about the importance of this expressed across the nation. The incorporation of the public interest defence in the Bill would address many of the concerns that these Benches and others have expressed about the dangers to personal liberty in this legislation. I therefore beg to move.

Lord Purvis of Tweed: My Lords, I will add very briefly to the comprehensive introduction of the amendments. I thank my noble friend for drafting the amendment and allowing us to debate it in Committee. My remarks relate to the concerns raised by the BBC—just one of the organisations that has been in touch—which I think are extremely significant. I have been very fortunate in my work as the foreign affairs and development spokesman for my party in being able to travel, including to conflict-afflicted areas. Our journalists and our BBC around the world are one of the jewels in our country’s crown. When they raise significant concerns, I think that there is a duty on us to listen to them very carefully.
With our free and fearless press in this country, I think that there is a dichotomy. I am sure that those in the intelligence community know that our free press and our openness make us more at risk; in fact, many journalists doing their job are at risk themselves in many areas. But we are a safer and more open and democratic country because of the press, and we have a higher standing in the world in the long term.  So when the BBC raises concerns, as my noble friend indicated, highlighting the Law Commission’s comments about whether we are considerably less likely to not be complying with Article 10 of the ECHR, it is of concern for those recommendations to be ignored.
With the Bill, it seems as if we are now going to be in stark contrast with comparable legislation in other countries, including our closest intelligence partners in the Five Eyes countries. I would like for the Minister, in responding to this, to state why we go far beyond our Five Eyes allies in this regard.
There are a couple of other areas that the BBC raised: one is the criminalisation of the publication of material that is already in the public domain. With sentences of potentially life and 14 years, the chilling effect on journalists could be marked. I hope that that will be responded to very clearly by the Government. Those powers go beyond the Police and Criminal Evidence Act with regards to protections provided for journalistic material.
In Committee so far, we have raised the breadth of the Bill, combined with the extensive sentences that are open to it, and I believe that the chilling effect on our media will have a negative impact on our country overall. If they do not accept my noble friend’s amendment today—which I suspect the Minister will not—I hope that the Government will engage with him and with others who want to see the Bill work, but work by protecting the essence of our country, which is what my noble friend outlined.

Baroness Manningham-Buller: My Lords, I think this amendment has substantial problems. If I may, I will remind the noble Lord, Lord Marks, of what Article 10 actually says—I have borrowed the iPad of the noble Lord, Lord Carlile, which is still working, my iPhone having died. The second paragraph of Article 10, after talking about freedom of expression, says:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security”,
and a string of other things are added to that. I just remind the noble Lord of that qualification.
If the BBC and others are making such remarks, then of course we should take them seriously. I have not received all this briefing, but perhaps that is understandable. It is superficially attractive to have a defence of public interest, but let me explain to the Committee why it is really very difficult. From it, the risk of release of national security information is substantial. What does that mean? National security information includes information that can indirectly identify the sources of intelligence, whose lives may be at risk. It can identify sources and methods that are vulnerable and unable to be defended.
There are a number of really problematical areas in the amendment. It risks emboldening an individual who wishes to release national security information in the hope that they can rely on a public interest defence. Proposed new subsection (2) suggests that the prosecution has
“to prove beyond reasonable doubt that the conduct alleged was not in the public interest”,
but the reality is that it will be very hard to prove that without compounding the damage already caused by the release of the information.
There is also a high risk of the individual making a miscalculation on whether the public interest in disclosure outweighs the public interest in maintaining secrecy. Even if the person leaking that national security information believed in the nobility of what they were doing and had no malign intent, which I can accept, it could have catastrophic impact, leading to serious harm and loss of life. There is a real difficulty of rebuttal at trial, as I mentioned, because of compounding the damage, even when the individual had malicious intent.
I think we will come to talk about the whistleblowing amendment from the noble Baroness, Lady Kramer, who is not in her place but to whom I have talked a little about this. At the risk of saying now some of what we will say then, I want to reassure the Committee on the channels available. I can talk only for MI5, but if members of the service are concerned about wrongdoing they can go to the senior legal adviser, to the ethics counsellor—an appointment made when I was director-general—to talk about ethical issues about which they are concerned, and to the director of policy, security, and information and compliance. These are designated officers with whom real matters of concern can be raised. They can also go to the external staff counsellor, who sits in the Cabinet Office. They may also, with permission, which would be given, go to consult the Permanent Under-Secretary of State of the Home Office; the National Security Adviser; the Cabinet Secretary; the chair of the Intelligence and Security Committee; the Comptroller and Auditor-General, if it is a matter of financial wrongdoing; or the Attorney-General, if it is a legal issue.
I am sure that noble Lords will wish to go into that in a bit more detail when we come to talk about the whistleblowing amendment, but at this stage I would say that the amendment, however attractive on the surface, potentially represents a quite serious threat to national security. There are provisions for people to raise substantial concerns through various channels.

Lord Carlile of Berriew: My Lords, I share the view that I think is being proposed, at least implicitly, by those who tabled the amendment that nobody should be prosecuted if a prosecution would be contrary to the public interest. Indeed, I share the view that nobody should be prosecuted if their belief, however unreasonable, was that something was in the public interest. I would hate to see a wholly unreasonable person prosecuted for something that they believed was in the national interest if, for example, they suffered from a psychiatric condition that made their belief totally irrational.
I have to say that I believe that this clause does not achieve the purpose which it is purported to achieve. The noble Lord who opened this debate did say—I recognise this—that he is not claiming this is a perfect clause, but I suggest that, if we are to have a clause anything like this, it needs an awful lot of work done on it. As drawn, subsection (3) in effect means that a  jury would have to decide, in part at least, whether what the defendant had done was or was not in the public interest and then go on to decide whether the belief that they had that it was in the public interest was reasonable. I think it is very difficult to draft a credible and usable clause that achieves the end that is aimed for.
Indeed, my belief is that the target of this amendment is wrong. The target should be that people are not prosecuted for offences that should not be offences. We should try to remove from this Bill those parts which tend to criminalise, for example, journalists, rather than using a clause of dubious validity and coherence such as this.
There are criminal charges, mostly regulatory offences and often strict liability offences, in which there is a defence of reasonable excuse. A defendant can raise the evidential burden that they had a reasonable excuse for certain activities, and the prosecution then has to disprove the claim of reasonable excuse. There are torts, for example in defamation, where a public interest defence is specifically provided for, and that has been heavily litigated, including a very important judgment that was given by my noble and learned friend Lord Hope in one relatively recent case.
However, so far as I am aware—and I am sure I will be corrected if I am wrong—I do not know of a criminal offence where a jury has to decide what was in the public interest, and I would urge those who believe that this is something that could be placed before a jury to have sympathy with the courts that would have to deal with this provision, because judges in every case have the very important responsibility of summing up the law to the jury, and they would have to describe to the jury a reasonable definition of the public interest. That would have to be done, under current practice, by judges in writing, handing a document, a route to verdict, to the jury—and I apprehend that this provision would create impossible difficulty.
I return with an apology to something that I said in an earlier debate this evening about the public interest. Subsection (3) actually does set out tests which I imagine are habitually applied by the Director of Public Prosecutions if he—it is he at the moment—is determining whether it is in the public interest for a prosecution to take place. That is the right location for this decision to lie. What is set out here is the responsibility of the Director of Public Prosecutions. I apprehend that, in the sort of case that those tabling this amendment have in mind, it would be extremely rare for the DPP to decide that it was in the public interest for a prosecution to take place. That is not the role of the jury, and in my view it would be a serious mistake to make the judgment of the public interest the role of a jury.

Lord Faulks: My Lords, I have very little to add to that brilliant exposition of the difficulties with this amendment. As I said in relation to a previous amendment, I am of course very concerned with any threat to public interest journalism, and therefore I have some initial sympathy with the idea of a public interest defence. But I am afraid that, the more I looked at it and thought about it, the more I was convinced that this was not the answer. As the noble  Baroness, Lady Manningham-Buller, pointed out so cogently, Article 10 is not an issue here. Article 10 has always been a qualified right. There is no violation of the convention by the absence of a public interest defence.
I am particularly concerned about proposed new subsection (2). It seems to me that what is contemplated is that, if a defendant raises some prima facie case that they disagree with government policy, or whatever their general justification is for being in breach of one of the very serious offences to which this would apply, the prosecution will have to prove that the conduct was not in the public interest. It is difficult to know how that can be done without potentially disclosing matters that, in the interests of national security, it might be most unwise to disclose. In fact, it might even result in the prosecution not going ahead because the prosecution might take the view that it would be too damaging to disclose this. That itself would not be in the public interest in appropriate cases.
I echo what the noble Lord, Lord Carlile, said. A jury would be given a complex direction in writing. I can then only anticipate—I have had this experience myself, but not in this sort of case—that the jurors, who may be bewildered by a direction such as this, would ask a series of supplementary questions. What is meant by this? How do we respond to this? What if we agree with the defendant but do not think this? Et cetera, et cetera. It is difficult to conceive of this being a very satisfactory procedure, or indeed in the public interest.
So, although I sympathise with what lies behind this, I am concerned that the Bill could be altered more satisfactorily to protect journalists and whistleblowers. I am afraid that this is not the answer.

Lord Coaker: My Lords, I rise to speak primarily to my diffident amendment, which is none the less an important one. I agree with much of what the noble Lord, Lord Marks, said and what he seeks to achieve in his amendment. As he said, it is based very much on what Kevan Jones MP said on new Clause 5 in the debate in the other place.
I am going to leave to one side the notes I had written for this, because it is such an important debate and discussion. The amendment I put down was just a probing amendment to see that it was debated, but now I can see the sense of it, because in the remaining time for the Bill we will not have the opportunity for hours of debate about what a public interest defence should or should not be. But it is not going to go away.
As the noble Baroness, Lady Manningham-Buller, eloquently told us—supported by the noble Lord, Lord Faulks, and others—there is a view that a public interest defence, if you are not careful, will compromise national security in the ways that were outlined. We cannot ignore that, but neither can we ignore the fact that many respected organisations fundamentally believe that the Bill as drafted will both cause a problem with respect to those who wish to act as investigative journalists, which none of us would wish to see compromised—I know that this will be debated later on the amendment on whistleblowing from the noble Baroness, Lady Kramer —and prevent somebody who works in a service exposing  serious wrongdoing. The wrongdoing going on might be so serious that, on reflection, we would be pleased that they had brought it to the public’s attention. There is a real conflict here between those two points of view.
Nobody wishes to compromise national security or to curtail the opportunity for people to reveal things which are in the public’s interest. But having put a probing amendment down, it seems that my amendment is one way to try to wrestle with this problem in slower time, while we reflect on how we bring all this together. As I say, we cannot just dismiss all the institutions and organisations, including very respected people, who want a public interest defence. They include the Law Commission and many others such as Mishcon de Reya, who have sent us all a really informative argument for why there should be a public interest defence. They have pointed to various cases, some historic and some not so historic, to give examples of where a public interest defence may have helped.
I am sure that noble Lords will have seen those and can think of many in the past. People will have different views about whether they were right or wrong—whether Katharine Gun was right or whether the Clive Ponting case highlighted anything. The 2018 Intelligence and Security Committee’s review of what happened between 2000 and 2004 said that, had there been a public interest defence, that might have been exposed earlier. That point may be wrong, but the point I am trying to make is that we should not shy away from difficult debates and discussions when we are trying to put legislation together.
I have put my notes down, although I will come back to one bit of them in a minute, because that is the dilemma facing us. I think the Government themselves recognise that dilemma, hence the point made by the noble Lord, Lord Marks: that Tom Tugendhat MP said that the Government were reflecting on it. I try to inform the comments that I make from the Dispatch Box, because that is the way I am, so I looked at what the Government themselves were saying. In their response updated on 12 July 2022, the Government said this about public interest. I say an excuse me to the Committee for reading it but I need to do that and make a couple of comments afterwards; it is not too long.
The Government’s own explanation said:
“To enable wrongdoing to be exposed safely while ensuring that the Act remains workable to protect UK national security, the focus should be on making sure that individuals can make disclosures in a safe way, for instance through proper, protected routes for making an authorised disclosure. The Government is committed to ensuring that these routes are clear and accessible to individuals across government. Therefore, the government is updating guidance for government departments and bodies to ensure that there are safe and effective whistle-blowing routes available to all current and former staff and contractors who may wish to raise a concern.”
Is that relevant to what we are discussing? Is it irrelevant and has nothing to do with it? If they are updating guidance, who is being told about that update? If every department is doing it, what does that mean? Is it every department and agency of government, and what is the process for updating that guidance? Are we, as the legislature in the other place and here, going  to get sight of that guidance and, if it is going on, why is it not informing this Bill as it goes through? If the Government are trying to create safe and secure routes for individuals past and present to whistleblow or tell what has happened, what are those routes and what guidance is being updated?
I am not sure that the Minister will be able to respond to that, but if it is relevant, which I believe it is, then there should be something to inform this Committee of what that response means with respect to these measures. As I say, I have put down my notes because there is nothing wrong with what the noble Lord, Lord Carlile, and the noble Baroness, Lady Manningham-Buller, have said—or indeed what the noble Lords, Lord Marks and Lord Faulks, said. Nobody is wrong, but how do we resolve that conflict within what all of us want, which is the maintenance of investigative journalism and the ability of people to tell where there is serious wrongdoing, but in a way that does not impact on the national security of our nation, which we all support?
This dilemma cannot just be put in the “too difficult” pile; it cannot be put somewhere we can all reflect on it “at some point”. We somehow have to find a way to try to reconcile this conflict which gives certainty to the legislature, while ensuring that all of us can maintain the confidence we have in our democracy that serious wrongdoing can be exposed and simultaneously protecting national security—that should not be beyond us. That is why the amendment tabled by the noble Lord, Lord Marks, although not correct in every detail, is important, and why my amendment has been brought forward: to try to tease out, from the Government and this Chamber, people’s views on how we take this forward in a way which commands general support.

Lord Murray of Blidworth: I thank noble Lords for a very interesting debate on a topic of considerable public importance. These amendments concern the introduction of a public interest defence to the offences in the Bill. Amendment 75 adds a PID to Clauses 1 to 5. I am very grateful to those who have contributed to this short debate, including the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Carlile and Lord Faulks, with whom I find myself in agreement, particularly on their concerns about the practical consequences of this amendment, as well as on the concerns raised by the noble Lord, Lord Marks, on the application of Article 10 of the European convention. I therefore greatly welcome the display of expertise from all sides of the House.
It would be helpful for me to start by talking briefly about the genesis of these offences and the interaction with the Law Commission recommendation for a public interest defence. In this amendment, there is a significant risk of conflating the various Official Secrets Acts, so I will take a little time to clarify those Acts, because it is vital that we are precise in this context. Four Official Secrets Acts are in force: the 1911, 1920 and 1939 Acts, which deal with espionage, and the 1989 Act, which deals with unauthorised disclosures, often described as leaks.
The Law Commission, in its 2020 report, considered all four Official Secrets Acts. Starting with the 1989 Act, the Law Commission recommended the inclusion  of a public interest defence, not in isolation but rather as part of a package of reforms to that Act. It is important to stress that the Bill does not seek to reform the 1989 Act, which remains in place as the relevant legislation to govern unauthorised disclosures of specified material; for example, in relation to security and intelligence, defence or international relations. For that reason, I can answer the very fair question from the noble Lord, Lord Coaker, as to whether this was a relevant or irrelevant issue with the clear indication that it is not relevant to this amendment. When asked about the omission of the reform of the 1989 Act from the Bill, the Law Commission made clear, in its oral evidence to the Commons committee for the Bill, that it did not expect one single piece of legislation to address all aspects of its report.
I turn to the 1911 to 1939 Acts, which this Bill replaces. The Law Commission made a number of recommendations with respect to reform of those espionage laws, but crucially did not recommend the inclusion of a public interest offence. Again, during its oral evidence to the Committee for this Bill in the other place, the Law Commission was clear that, in its view, the requirements of the offences take them outside the realm of leaks and into the realm of espionage. It is worth also noting, as the noble Baroness, Lady Manningham-Buller, correctly observed to the Committee, that within the security services themselves there are elaborate whistleblowing mechanisms already in place for the declaration of unlawfulness, as she has already outlined.
Let me put it very clearly on record that the offences in Clauses 1 to 5 of this Bill are not intended to have a chilling effect on legitimate whistleblowing. As I have said, the Committee has this evening already heard first-hand of experience of the mechanisms in respect of whistleblowing in the security services. The provisions in this Bill are about espionage, and I am sure that the Committee would strongly agree that espionage against the United Kingdom can never be in the public interest, although I appreciate that that is not what noble Lords are implying by tabling this amendment.
I am pleased to confirm that the Government are, of course, willing to continue to discuss the proper protections for legitimate activity, as the Committee has expressed and the noble Lord, Lord Purvis, in particular, has requested. The noble Lord, Lord Coaker, asked for further details on the Government’s efforts to keep whistleblowing guidance under continuing review, and I can confirm that that work is ongoing. No doubt it can be discussed further, in a similar way.

Lord Coaker: I am sorry to interrupt, but just on the point about the guidance, where the Minister has confirmed that the Government are undertaking work to update it, what is the process and the timeline for that?

Lord Murray of Blidworth: I am afraid that I am unaware of the precise timeline—I will find out. If the matter is not discussed in relation to the Kramer amendment, obviously I shall write to the noble Lord in respect of it.
I turn to the offences themselves, and the aspects that we consider move them away from capturing legitimate activity. For the Clause 1 offence of obtaining  or disclosing protected information, the activity has to be for a purpose prejudicial to the safety or interests of the United Kingdom. It is right that we are able to prosecute disclosures of protected information when it is clear that a person intended to harm the UK and was working for or on behalf of, or with the intention to benefit, a foreign power. Legitimate whistleblowing would not meet all the requirements of this offence.
The Clause 2 offence of obtaining or disclosing trade secrets is designed to tackle the illicit disclosure and acquisition of sensitive commercial information amounting to a trade secret for, on behalf of, or for the benefit of a foreign power. For the offence to be committed, the activity has to be unauthorised, and the person has to know, or ought reasonably to know, that their conduct is unauthorised. Someone who disclosed information in the course of using lawful and appropriate whistleblowing routes would not be conducting unauthorised activity.
The Clause 3 offence criminalises assisting foreign intelligence services. The offence can be committed in one of two ways: either by conduct of any kind that a person intends will materially assist a foreign intelligence service, or by conduct that it is reasonably possible may materially assist a foreign intelligence service and where the person knows, or ought reasonably to know, that that is the case. The material assistance must be material assistance in carrying out UK-related activities. The expression “UK-related activities” means activities taking place either inside the United Kingdom, or those taking place outside the United Kingdom which are prejudicial to the safety or interests of the United Kingdom. Legitimate whistleblowing activity should not meet the threshold for an offence under Clause 3, such as intending to materially assist a foreign intelligence service in carrying out covert operations in the United Kingdom.
I move on to the offences in Clauses 4 and 5, which criminalise harmful activity in and around prohibited places. It is right that we are able to prosecute relevant activity around the United Kingdom’s most sensitive sites where it is clear that such activity has been carried out to harm the United Kingdom. Activity carried out to harm the United Kingdom in this way cannot be in the public interest.
Clause 4 allows the prosecution of those who intend to harm the UK with their actions, while Clause 5 covers those who conduct specified activity relating to those sites where they know it is unauthorised. I am sure that the Committee would agree that it would not be in the public interest for an individual to enter one of the UK’s most sensitive sites when they know that they are not authorised to be there.
I understand that there may be specific concerns around the public interest in protests being allowed to take place near these sites. However, as outlined, protesters would be caught only if the activity is conducted with a purpose prejudicial to the safety or interests of the United Kingdom, or if the person knows or ought reasonably to know that the conduct in question is unauthorised. A legitimate protest therefore would not meet these tests.
The same applies to journalists conducting activity near these sites. For example, a journalist taking photos from outside a prohibited place, where they do not have a purpose prejudicial to the safety or interests of the United Kingdom and there is no signage to say it was not permitted, would not commit an offence. As we have already committed to in an earlier debate in Committee, the Government will work with the police to ensure that there is clear guidance in place to ensure that protests and other legitimate activity is policed appropriately.
I hope that my explanation has been helpful in explaining why it is the Government’s clear position that these offences are sufficiently tightly drawn so as to be targeted at harmful espionage activity—

Lord Purvis of Tweed: The Minister knows that, on previous days in Committee, we have discussed the issue of how the interests of the United Kingdom are defined and how broad that is. Whom does he believe should be the final arbiter in defining what is in the interests of the country and in the public interest?

Lord Murray of Blidworth: The noble Lord’s question as I understand it is whether the decision about public interest is one for the police or for the prosecutor because, in reality, that is where the decisions would lie. Ultimately, if both those bodies were satisfied and a prosecution were brought, the issue would be one for the court.
It is our position that a public interest defence is neither necessary nor appropriate. However, it is important to point out that, even if the Government were to accept the case that the offences risked criminalising such legitimate activity, a public interest defence would not be an appropriate way to address this issue. As crafted, the proposed defence puts the onus on the Government to prove “beyond reasonable doubt” that the defence did not apply. This defence would therefore act as an open invitation to those who seek to conduct espionage against the United Kingdom, and disproving this defence would likely require the disclosure of further sensitive material and only serve to compound the original harm.
The consequence of this is that those who intend to harm the United Kingdom will be able to exploit this defence to continue conducting harmful activities in the knowledge of the prosecution difficulties that would be faced by the authorities. This would limit the effectiveness of the legislation in enhancing our ability to deter and disrupt harmful activity.
Amendment 120B, proposed by the noble Lord, Lord Coaker, would require the Minister to publish an assessment of the potential merits of introducing a public interest defence. As I have just laid out, the Government have extensively considered the merits, or otherwise, of such a defence, and this renders a review after the Bill’s passage unnecessary, for the reasons I have already set out. Thus, for all these reasons, the Government cannot accept the tabled amendments.

Lord Purvis of Tweed: Before the Minister sits down, I am conscious that, as the noble Baroness, Lady Manningham-Buller, mentioned, we will come  on to the whistleblowing aspect, but the Minister was at pains to quote liberally from the Law Commission’s evidence to the Public Bill Committee in the Commons on this. I of course have read the evidence, as others will have done. I was interested when it came to the disclosure of information element, because Professor Penney Lewis told the Public Bill Committee:
“Indeed, we recommended a mechanism for authorised disclosures to an independent statutory commissioner, which would have appropriate investigatory powers to look into, for example, disclosures that might be embarrassing to the Government.”—[Official Report, Commons, National Security Bill Committee, 7/7/22; col. 52.]
Why are we not legislating for that in the Bill? The Minister seemed to have accepted everything that the Law Commission had said, but not this.

Lord Murray of Blidworth: It is clear, in the view of the Government, that those issues relate to the provisions found in the 1989 Act, which are not addressed in the Bill. While I note that evidence, it is not relevant to this amendment. As I have already said, I therefore invite the noble Lord to withdraw his amendment.

Lord Marks of Henley-on-Thames: My Lords, I will be asking for leave to withdraw this amendment, not on the basis that it will go away but on the basis that, first, there is room for further discussion, even though only a chink has opened up in what the noble Lord, Lord Murray, has had to say; and, secondly, on the basis that I accept that the amendment is not perfectly drafted and we would like to take further advice and further consider a number of matters in the drafting of the Bill. What I will say, very briefly if I can, about the amendment and the response of the Minister and the other speeches we have heard, is that this question has to be taken in the context of the introduction of the Bill.
There can be no doubt that the Bill will manifestly broaden the ambit of national security and protection legislation: first, because it is targeted not at individuals who have an obligation to the state but generally at citizens; and, secondly, in the way that the Bill is drafted. We talked about this a great deal last week, when we noted the inclusion of expressions such as, “know or reasonably ought to have known”, “conduct that it is reasonably possible may materially assist a foreign intelligence service” and all those peripheral expressions. Indeed, we note the use of the phrase “prejudicial to the interests of the United Kingdom” when we know “the interests of the United Kingdom” are determined by what the Government of the day believe those interests to be. All those broaden the ambit of these criminal offences.
I completely agree with the noble Lord, Lord Coaker, that this issue is not going to go away. All the briefings we have had from journalists and organisations tell us how important a public interest defence is. I completely take on board the point made by the noble Baroness, Lady Manningham-Buller, repeated by the noble Lord, Lord Faulks, and by the Minister, that Article 10 on freedom of expression is a qualified right. Of course, people of legal distinction can disagree, but it is entirely wrong to suggest that the Law Commission does not contain people of legal distinction.
If it were translated into a consideration of this Bill, because there is no material distinction on the disclosure points, I feel confident that the Law Commission would come out with the same recommendation as it did in 2020. We also have the recommendation of the Joint Committee on Human Rights in relation to a public interest defence. It is very difficult to argue that the fact that it is a qualified right under Article 10 does not mean that it would apply. Of course, we, the Law Commission and the Joint Committee on Human Rights have read the whole of Article 10 and understand the qualification, but the overwhelming point is the phrase
“necessary in a democratic society”.
Everything else is subject to that in the qualification.

Lord Faulks: Just so that I understand, is the noble Lord saying that the absence of a public interest defence, whether framed in the manner of this amendment or in a similar or a different way, means that the Bill would automatically be a violation of Article 10 of the European convention?

Lord Marks of Henley-on-Thames: As drafted, I fear that it would. Since we have had absolutely no indication that concessions will be made to all the amendments we discussed last week—I rather doubt that we will get them—it seems to me that investigative journalism will be seriously affected in a way that risks being a serious breach of Article 10. It might be saved by the qualification suggested by the noble Baroness, Lady Manningham-Buller, but I do not accept that that case is made out.
I entirely accept the noble Baroness’s point that the damage of publication cannot be recalled, but a balance must be struck which takes into account the interest in disclosure against the interest in secrecy. We emphasise the importance not just of free investigative journalism in a democratic society but of the control of wrongdoing. For my part, I cannot see anything in what the Minister said which comprehensively puts paid to the idea that there could be a cover-up of wrongdoing not possible for citizens to redress by disclosure without being subject to criminal proceedings under this Bill.

Baroness Manningham-Buller: I reassure the noble Lord that I do not believe that any of my former colleagues would want wrongdoing to be concealed. In balancing secrecy and the public interest, you have to analyse what secrecy is there for. Of course, secrecy can be used wrongly and attached to things which are not secret. However, I am talking about things where revealing the information could compromise the lives of individuals at that level. Making that judgment is pretty tough on a court, without knowing the full context. To defend against that, prosecutors would have to compound the damage. Of course, wrongdoing should never be covered up, but secrecy is not there just for the sake of it. It is there to protect lives and methods.

Lord Marks of Henley-on-Thames: I accept entirely that this is a very difficult issue and that the balance to be struck is very difficult. The noble Lord, Lord Coaker, mentioned the case of Clive Ponting,  where there was undoubtedly government misinformation and wrongdoing. Clive Ponting was not a journalist; he was a former civil servant. In fact, he wrote books as well, including one on the truth about the “Belgrano”. Nevertheless, what he did was important. It is vital to our democracy that juries have the right—as one did in that case against the direction of the judge, because there was not a public interest defence—to say, “No, we will not convict because there has been wrongdoing.” A jury should not have to defy a judge and misapply the law because of the absence of such a defence to avoid covering up wrongdoing.
Of course I accept the point about drafting from the noble Lord, Lord Carlile, and that this amendment is not perfect. Indeed, it was he brought up the Ponting case at the very first instance in these proceedings. However, as the noble Lord, Lord Coaker, said, we cannot run away from drafting a public interest defence, if that is necessary, because the drafting is difficult. It is a different topic, but in Section 4 of the Defamation Act 2013 we have a defence of reasonable comment on a matter of public interest. I was on the pre-legislative scrutiny committee for that Act, and we considered very carefully how that would work. However, at that stage—although they are rarer now as a result of that Act—these were matters for determination by a jury, and a jury can determine such a public interest defence.

Lord Faulks: First, with great respect, jury trial was effectively abolished by the Act that the noble Lord is talking about. Secondly, it put into statutory form a so-called Reynolds defence in a civil claim. Here we are talking about prosecutions of criminal offences of the most serious sort. The analogy is not appropriate.

Lord Marks of Henley-on-Thames: I disagree—a fortiori, if such a defence is appropriate in a defence to a civil claim, it is appropriate in a defence to criminal  proceedings that carry maxima of 14 years and life imprisonment. We may differ on that; nevertheless, of course I note that jury trial was abolished for defamation by that legislation. However, when we were considering the public interest defence, the abolition of jury trial was not then in mind; we had always had jury trials, and still can do in rare cases.
The only other point I wish to make is in answer to the noble Baroness, Lady Manningham-Buller. Of course, in the case of whistleblowers, there are other avenues to pursue for those employed by the security services, but there are two answers to that point. The first is that we are not just concerned with those employed by the security services, or those employed by anybody in particular. We are concerned with offences designed to be used and prosecuted against ordinary citizens. Secondly, we have included in our amendment—it is one of the best drafted parts—that one of the factors to be taken into account would be
“the availability of any other effective authorised procedures for achieving the purpose of the alleged conduct and whether those procedures were exercised”.
That will always be an important point, because it answers the point that you could have gone to an authorised body for the protection of whistleblowers.
This issue is not going to go away. I suspect we shall come back to it on Report, and that there will be a vote on it. The amendment may be in a very different form, but nevertheless, with these very serious criminal offences, I cannot accept that a public interest defence is not in the interests of the public and the nation. I beg leave to withdraw the amendment.
Amendment 75 withdrawn.
Clause 37 agreed.
House resumed.
House adjourned at 10.03 pm.